What to do if you need to serve a section 21

One of the questions we are frequently asked by Landlords struggling with difficult or bad tenants.

The law is always changing and can be quite unclear.

Whilst we rarely have a difficult or bad tenant, we are here to help! We can offer help and advice if would like assistance with the eviction process. Call 0121 285 2951 to speak to one of our team.

It is every landlord’s worst nightmare. You get a new tenant and everything seems fine at first. You both get on, the property appears to be well maintained, your neighbours like the new tenants.

Then the problems start…the honeymoon period is over…

Suddenly you are in arrears of rent. Your neighbours start complaining about the music being played at 3.00am, then again at 4am…loudly.  Rubbish is piling up in the backyard.   Dodgy characters seem to be coming and going at all hours, making a nuisance of themselves and annoying the neighbours.  Dogs are barking constantly and this is before you get a glimpse of what they have done to the inside of the property.

The most important thing to remember if you have been unfortunate enough to gain a tenant from hell is there are legal steps you can take to get them out of your property and out of your life.

Issuing a Section 21 notice.

The traditional way to evict a tenant in the UK is to issue a ‘Section 21’ notice . You must serve this notice at least two months before you wish to re-take possession of the property. It must be in writing and state the date in which you will take possession of the property.

Kingsley Bishop can help you issue and serve the Section 21 notice. However, as the law has now changed (from 1st October 2015) there are certain circumstances in which you cannot seek possession against your tenant using Section 21 of the Housing Act 1988.

These are:

(a) during the first four months of the tenancy (but where the tenancy is a replacement tenancy, the four month period is calculated by reference to the start of the original tenancy and not the start of the replacement tenancy – see section 21(4B) of the Housing Act 1988);

(b) where the landlord is prevented from retaliatory eviction under section 33 of the Deregulation Act 2015;

(c) where the landlord has not provided the tenant with an energy performance certificate, gas safety certificate or the Department for Communities and Local Government’s publication “How to rent: the checklist for renting in England” (see the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015);

(d) where the landlord has not complied with the tenancy deposit protection legislation; or

(e) where a property requires a licence but is unlicensed.

Landlords who are unsure about whether they are affected by these provisions should seek specialist advice.

This form must be used for all ASTs created on or after 1 October 2015 except for statutory periodic tenancies which have come into being on or after 1 October 2015 at the end of fixed term ASTs created before 1 October 2015. There is no obligation to use this form in relation to ASTs created prior to 1 October 2015, however it may nevertheless be used for all ASTs.

If your tenants have broken the terms of their tenancy agreement you may serve a Section 8 notice of seeking possession specifying which grounds they have broken. We can also help you to serve this notice.  If your tenant refuses to budge after receiving the Section 21 notice or Section 8 notice, then you will need to apply to the Court to obtain a ‘Possession Order’. If your tenancy is an ‘Assured Shorthold Tenancy’, (the most common type, and the structure of all tenancies that started on or after 15th January 1989), then you need to;

1. have grounds to seek eviction of your tenant; and
2. have served a Section 21 notice

before you apply to the Court for a Possession order.

The Accelerated Possession Procedure

If you are desperate to be rid of a tenant who is hundreds of pounds in arrears of rent and has the police around so much you are thinking of charging them as they may as well live at the property, then you may be able to use the Accelerated Possession Procedure to gain occupation quicker.

However, the Accelerated Possession Procedure does not always live up to its name and can take just as long, (if not longer) as the traditional route. To apply to the court for Accelerated Possession, you still need to serve a Section 21 Notice two months before the date you wish to take possession. The reason the procedure is known as ‘accelerated’ is because rather than requiring a court hearing, the Judge will make his or her decision based on the paperwork provided by your solicitor/agent.

If you want to claim rent arrears you can use the standard possession procedure. Or you can use the accelerated procedure to get your property back and then make a separate court claim for the rent arrears.

When you apply

When you apply to the court for accelerated possession, the court will send your tenants a copy of the application.

Your tenants have 14 days to challenge the application, from the date they receive it.

A judge will decide either to:

• issue a possession order that states your tenants must leave the property (this is normally the case)
• have a court hearing (this usually only happens if the paperwork isn’t in order or your tenants raise an important issue)

Even if there’s a hearing, the court can still decide to issue a possession order.

If your tenants are in an exceptionally difficult situation the judge may give them up to 6 weeks.

Enforcing the Possession Order

Once the possession order is granted, notice will be served on the tenant by the Court. If they fail to leave the property, the Court can send a bailiff to the premises to remove them. However, it is important to note that this can take up to four to eight weeks. During this time you are unlikely to be paid any rent.

In cases of an extremely stubborn tenant who uses every trick in the book to delay or circumvent a possession order, a landlord can apply to transfer the enforcement of a Possession Order obtained at the County Court via a writ of fi fa to the High Court. If successful, a High Court Sheriff will turn up on the tenant’s doorstep within seven days of the writ of fi fa being issued, without any prior notice given. They also have the power to seize goods if rent arrears are owned.

High Court Sheriffs are much more expensive than County Court bailiffs, but you may find, when balancing up the loss of rental income, not to mention the personal stress experienced waiting for a bailiff to execute his or her duties, the cost is well worth it.

Evicting the tenant from hell is not a straight-forward process, but with Bullock & Lees’ assistance and good legal advice, the procedure can run smoothly and efficiently, leaving you free to recover your lost sleep and sanity and obtain new, responsible, law-abiding tenants who will care for your property and pay their rent on time.

In fact, why not take all the stress out of managing your property, and let us find new tenants and manage it for you! Call us now for your free valuation and to discuss your management requirements!