Tenant Eviction – A Minefield
On a daily basis, I am approached by landlords to advise them of their options as they seek to regain possession of their property from tenants. The instructions I receive often follow unsuccessful attempts that they have made to regain possession.
The most common cause for uncertainty in this area of law relates to the specific notice periods that landlords must give tenants before they are legally entitled to reclaim possession of their property. In essence, this area of law is a minefield and legal advice should be sought by landlords at the earliest opportunity.
Common tenancies
The landscape surrounding tenancy agreements changed quite dramatically with the passing of the Housing Act 1988. The Housing Act 1988 brought in to effect two new types of tenancy agreement:
Assured Tenancy and an Assured Shorthold Tenancy (“AST”)
The most common type of tenancy is an AST. In order for a tenancy to become a qualifying AST, the following criteria must be met:
- the property must be the tenant’s main home;
- the landlord must not live at the property;
- the tenant must pay rent and;
- the tenancy must be for a minimum period of 6 months.
If these criteria are met, then the tenancy will generally be an AST, subject to limited exceptions.
Where the tenant remains in possession of the property after the specified period, the tenancy becomes what is referred to as a statutory periodic tenancy. Such tenancies will roll from week to week or month to month and so on depending on how often the rent is paid. For example, if rent is paid on the 13th of every month, the tenancy will be a monthly periodic tenancy.
Possession - Section 21 Notice to Quit
If a landlord intends to regain possession of the property under an AST or a statutory periodic tenancy, the most common method is for the landlord to serve a Section 21 Notice to Quit. This notice must provide the tenant with two months’ notice before they are required to vacate the property. There are however, specific rules that must be adhered to, and which frequently result in confusion for landlords and often letting agents.
When a landlord decides that a tenant should vacate the property at the end of the fixed term under the AST, the landlord must ensure that the two months’ notice is not due to expire on or before the last day of the tenancy. For example, if a Section 21 notice is issued four months before the tenancy is due to end, the notice will have to be dated after the last day of the fixed term. That is, if the last day of a tenancy is the 13th of April, the landlord may serve a Section 21 Notice to Quit on the 13th January, but it must not be deemed to expire until the 14th of April.
In circumstances where there is a statutory periodic tenancy, the two months notice must expire on the last day of a period of the tenancy. For example, if the fixed term expires on the 10th then the period of the tenancy begins on the 11th. As such, provided rent is paid monthly the last day of each period of tenancy will be the 10th of each month. Therefore, the Section 21 Notice to Quit will have to expire on the 10th of a month and be served a minimum of two months before the 10th of a month.
Application to Court
Once a valid Section 21 Notice to Quit has been served, and if the tenant remains in possession of the property, the landlord can commence what is referred to as Accelerated Possession Proceedings at Court. Provided the Court is satisfied that the tenancy is an AST, that it has expired or become a statutory periodic tenancy and that the proper notice is served, it must give a possession order.
Concerns?
It is all too common for landlords and their representatives to provide the incorrect notice period to tenants when serving a Section 21 Notice to Quit. In such circumstances, the Court will refuse to make an order for possession. As a direct result, the landlord will have to serve a new Section 21 Notice to Quit, which will inevitably delay matters. In circumstances where proceedings have been issued but the Court has refused to give possession, the landlord will likely have wasted significant sums of money by way of court fees and/or solicitors costs.
It is imperative that landlords seek legal advice at the outset. We are equipped to advise and pursue all matters relating to landlord and tenant litigation, as well as assessing the actions of other professionals to determine whether they have acted negligently.
It’s all too common for us to get papers after a defective notice has been served so we usually advise landlords to let us check the notices first because any mistakes can lead to costly and frustrating delays so please don’t hesitate to get in touch at the first sign of trouble.
