Advice for Evicting Tenants

Evicting tenants is something that landlords never want to do. Sometimes, as landlords we may not have any choice but to evict a tenant, for example if they’re not paying the rent. On other occasions, our circumstances may have changed, and we may need to ask tenants to leave to make it easier to sell one of our buy-to-let portfolio properties, or even because we need to move into it ourselves.

No matter what your reasons as a landlord for wanting to evict tenants, there are clear processes that you must follow to ensure that the action you are taking is correct and enforceable.

This guide will look at what you need to do when evicting tenants.

Please note that while this has been written by a member of our ARLA-qualified landlord team, this is intended as a guide only and has not taken your specific circumstances into account. You should always take legal advice if unsure about the procedure for evicting a tenant.

Which Eviction Notice Do I Need to Use?

Private landlords have two types of eviction notice they can use. You can use the image below as a handy flow chart style guide to help you understand which notice you need to use, or read on to learn more about each type of eviction notice.

Serving a Section 8 Notice

A Section 8 notice can be used to end an assured shorthold tenancy (AST) or a regulated tenancy.

When an AST is in place, as a private landlord you can use a Section 8 to end a tenancy when the tenant has breached the agreement. This will usually be due to rent arrears, but there are many “mandatory grounds” for possession, which we will look at shortly.

If You’re Serving a Section 8 Notice Due to Rent Arrears

If tenant rent arrears lead you to serve a Section 8 notice, then you must have protected your tenant’s deposit. If you haven’t, and you really want your tenants to move out, a court may award your tenants up to three times the deposit amount. If this happens then your tenants could use the award to catch up with their rent, and your Section 8 notice will be unenforceable.

If you’re a landlord reading this but aren’t at the point where you currently wish or need to evict a tenant, check that you protected the deposit when you received it. As we’ll see later, this is crucial for evictions with Section 21 notices, too.

We’ll look at how you can evict a tenant due to rent arrears throughout this guide.

Mandatory Grounds for Possession on Section 8 Notices

To successfully serve a Section 8 notice and for it to be enforceable, one or more of the mandatory grounds for possession should be met. The mandatory grounds for possession should be written on the Section 8 notice when it is served.

Once tenants have received the Section 8 notice, if they don’t leave, you as the landlord must then complete a standard possession order and apply via your local county court to evict and regain possession of the property.

What are the mandatory grounds for possession?

1.      You Need to Live in the Property

Self-explanatory this one. If you, or your spouse, needs to live in the property, you can serve a Section 8 notice. However, you must have previously lived in the property yourself for this to be enforceable.

2.      Mortgage Lender is Repossessing the Property

For properties where the mortgage agreement began before the tenancy, the mortgage lender has the right to repossess the property. Be aware that tenants can only be evicted in this instance if they were aware prior to the tenancy commencing that the property may be repossessed by the mortgage lender. As the landlord, it will be up to you to prove that you made the tenant aware of this, and that they happily moved into the property regardless.

3.      The Property is a Holiday Let

You can take back possession of the property if you normally let it out as a holiday let. Many landlords choose to do this as they can make more money from short-term lets over three or four months during the summer relative to renting it out long-term.

To be able to use this as a mandatory ground for eviction under Section 8, the following conditions must be met:

• The tenancy must not be longer than eight months.
• The property must have been let as a holiday home the year before.

Landlords who are looking to use their property as a holiday let for the first time should therefore not use a Section 8 notice to gain possession of the property.

The Upad Landlord: Should You Switch to Holiday Lets?

4.      The Property Belongs to an Educational Institution

This mandatory ground would rarely apply to a lone buy-to-let landlord needing to take possession of their property. However, if an educational institution owns a property and rents it out when students aren’t using it, for example for short-term lets during the summer, then they may need to take it back into their possession in time for students to move back into it when they return to study.

For this mandatory ground to be applicable:

• The tenancy must be shorter than 12 months.
• The property must have been let as a student let the year before.

5.      The Property is Needed for a Minister of Religion

If the property is owned by a religious body, this ground can be used should the property be needed for a minister to live in and perform their community duties.

6.      The Property Needs to be Refurbished

Often, when the landlord tells the tenants they need to refurbish the property, and that they will cover the costs of their move in the interim, tenants will agree. After all, who wouldn’t want to live in a property that’s in a better condition to how it is currently?

Sometimes, it isn’t that easy!

Landlords can enact a Section 8 notice if their tenants need to move out while refurbishments are carried out. As a landlord you may need to demonstrate that the scale of the refurbishments to be carried out would make the property uninhabitable while the work is completed. You may also have to pay any removal costs incurred by the tenant.

In reality, needing to enact a Section 8 and potentially paying court costs for this issue is rather silly, so we recommend you do all you can to resolve this between yourself and the tenant first.

7.      Your Tenant Dies

Believe it or not, tenancies can be passed on in a will! If this happens, then the tenancy legally transfers to the deceased’s spouse or civil partner. This scenario may occur if a couple have lived in the property but only one of them had their name on the tenancy agreement, for whatever reason. Although you may not envisage this causing a problem, for this reason it is best to ensure all tenants’ names are on the tenancy agreement.

If the tenancy agreement was in the deceased’s name and the tenancy has not been passed on in their will, you have 12 months from their death to take possession of the property under a Section 8 notice, although clearly you may wish to deal with this in a way that avoids having to do so!

Guide to Assured Shorthold Tenancy Agreements

8.      Rent Arrears

Unsurprisingly, you can evict your tenant if they fall into rent arrears. However, as a landlord it is in your interests to try and resolve this issue as amicably as possible, such as agreeing a repayment plan for the overdue rent. Your tenant will likely find it easier to repay via an increased rent amount each month rather than paying a whole month or two at once, plus by working it out between you, you can avoid court costs and the subsequent hassle of finding a new tenant.

Of course, you may be at your wits’ end with a tenant and be taking action having already tried to agree all of the above.

In this case, to evict a tenant on the grounds of rent arrears, depending on how often the tenants pays the rent, the tenant must be eight weeks (if they pay weekly) or two months (if they pay monthly) in arrears for this ground to apply.

The tenant must be in arrears:

• On the date you serve the Section 8 notice.
• And on the date the Section 8 is brought to court.

Remember, too, that if you haven’t protected your tenant’s deposit you are liable to have action taken against you which could lift the tenant out of arrears.

With all this in mind it makes sense to try and resolve the situation amicably and be as flexible as you can in relation to working with your tenant.

Watch our free landlord webinar "The Complete Guide to Rent Arrears"

Discretionary Grounds for Serving a Section 8 Notice

As well as the above mandatory grounds for eviction, there are also a number of discretionary grounds for eviction under Section 8.

The difference between these discretionary grounds and mandatory grounds is that under discretionary grounds, a court may give the tenant another chance. If you are evicting under mandatory grounds, then a judge has no choice legally but to evict. As a landlord it is up to you to prove that the discretionary ground is valid, and you will need to provide evidence and detail as such.

On this basis many industry sources, including Landlord Law Blog in this post, suggest landlords never use discretionary grounds when serving a section 8, instead sticking to the mandatory grounds explored above.

What are the discretionary grounds for serving a Section 8 notice?

1.      You Want to Move the Tenant to Alternative Accommodation

Under this ground, you would need to have a good reason to move your tenant, and also be willing to pay removal expenses.

2.      Rent Arrears

Strangely, rent arrears can be used as both a mandatory and discretionary grounds for eviction. We recommend you stick to the mandatory definition so you’re on legally solid ground, and use the clear definitions of when you can apply for a Section 8.

If your tenant is a month or four to six weeks in arrears, for example, this may be causing you difficulty but you’re going to find it very difficult to evict a tenant for this under discretionary grounds, so again we recommend you try and resolve the situation yourself.

3.      Regular Failure of the Tenant to Pay Rent

If the rent is always late, but not necessarily in arrears, then you have a discretionary ground for eviction.

Depending on the circumstances it may be worth having a chat with your tenant and discussing why this happens. Their payday may have just changed so they could just need a change of date. If you subsequently need to change the date of your payment to your mortgage lender then this shouldn’t be a problem, either.

It’s good to talk!

4.      The Tenant Has Breached the Tenancy Agreement

A self-explanatory point, but how easy is it going to be to prove in a court that your tenant has been smoking when the tenancy agreement says they shouldn’t?

5.      Neglect of Property by the Tenant

Another self-explanatory one, but again remember you need to prove that the problem is due to a tenant’s neglect.

6.      Anti-Social Behaviour by the Tenant

As a landlord you can use this if your tenants have been causing trouble with neighbours (or anyone, for that matter) at the property, as well as if the tenant has been convicted of using the property for illegal or immoral purposes.

If you want to evict a tenant on these grounds, it is best to have something concrete from the police rather than using anecdotal evidence from neighbours complaining about parties, for example.

7.      Domestic Violence

This condition doesn’t apply to private landlords, only to social housing or properties owned by charity trusts. These bodies can use this ground under section 8 if one member of a couple, or a member of their family who also lived in the property, has left due to violence or threats of violence from the other.

For example, if partner A assaults partner B, and partner B subsequently moves out, partner A can then be evicted under Section 8.

8.      Poor Treatment of Furnishings

This can apply to white goods in the property even if the property was otherwise let unfurnished. If you have let a property furnished however and your tenants have not looked after the property, then you can use this as a discretionary ground for eviction under Section 8.

9.      If the Tenancy was Linked to Employment

If a tenant works for you and lives in the property as a condition of their employment, and the employment subsequently ends, you can use a Section 8 to try and remove them from the property.

10.  If the Tenant Gained the Tenancy by Making a False Statement

If the tenant, or a person connected to the tenant, made a false statement that led to you granting the tenancy, then this is a discretionary ground for a Section 8 eviction.

Using Discretionary Grounds for Section 8 Evictions

Remember that under discretionary grounds for Section 8 evictions that the judge doesn’t have to evict. If you are pursuing a discretionary reason on a Section 8 then you should ensure you have clear cut evidence that backs up your reason for wanting to take control of the property.

Serving a Section 21 Notice

It is common for landlords to seek to evict tenants using a Section 21 notice. A Section 21 notice is known as a “no fault” eviction, as landlords don’t have to give a specific reason for requiring possession of the property.

However, Section 21 notices can only be served if your tenants are under an AST. If your tenants are under a regulated tenancy, or you don’t have a written tenancy agreement, then a Section 8 notice must be used.

How to Serve a Section 21 Notice Correctly and Legally

For a Section 21 notice to be valid the following conditions must be met:

1. An AST must be in place. Note that if your tenants’ AST term has passed and they are now under a periodic tenancy they are still bound by the conditions of the AST, so you could still legally serve the Section 21 notice.
2. You must have protected the tenant’s deposit.
3. You must have served the tenant with the prescribed information relating to the protection of their deposit.
4. You must have provided the tenant with the Government’s “How to Rent” guide.
5. You must have a valid energy performance certificate (EPC) and gas safety certificate.
6. You must have let the tenancy end, or be activating a relevant break clause within the AST.
7. You must give at least 2 months’ notice to leave the property.

If you don’t follow and satisfy each of these points, the Section 21 will be invalid and any subsequent eviction application will be unenforceable.

You may also need to prove that notice was served. With this in mind, when you send the section 21 notice it is worth sending it as a “signed for” delivery, so you can demonstrate both when it arrived and that the tenant signed for it.

What is an Accelerated Possession Order?

If your tenants don’t leave at or before the end of the two-month notice period that you would have given with your Section 21 notice, you can apply for an accelerated possession order. Doing this can save you time and money as you won’t have to attend a court hearing, and though you’ll pay a fee for the accelerated possession order it’s still cheaper than paying for a full hearing.

Apply for an Accelerated Possession Order Here

To successfully apply for an accelerated possession order you should ensure all the paperwork is correct and that you followed all the guidelines for serving the Section 21. Otherwise the judge may dismiss your case and request, and you’ll need to start from the beginning.

If the tenant makes a defence or there are any other problems then the judge can arrange a hearing rather than simply granting the order.

However, if everything is in place and the tenant does not dispute the validity of the Section 21 notice, the judge will grant the order. This means you could get an order to gain possession of the property within 14 days, although the order may grant the tenant 42 days to leave should the judge feel that “exceptional hardship” will be caused to the tenant.

What If I Serve a Section 8 or a Section 21 and the Tenants Don’t Leave?

If the tenants won’t leave by the date given on a validly served Section 8 or Section 21 notice, then you must apply to the county court bailiff to have the tenants removed.

Is it Possible to Serve Both a Section 8 and a Section 21 Notice Together?

Yes, it is!

The benefit of serving both together is that they don’t cancel each other out because they serve different purposes for you as the landlord.

Therefore, if the tenancy was coming to an end and you wanted to regain possession of the property, you could serve a Section 21 notice at the same time as serving a Section 8 notice on the basis of rent arrears or another mandatory grounds for eviction.

If one of your notices has an issue, for example if the tenant in the scenario above was to repay their arrears, or if your Section 21 notice was incorrect, then you have the other in place to back it up. By hedging your bets in this way you could save time and money. After all, if you want to regain possession of your property, so long as you do so in the proper and legal manner, does it matter to you whether you’ve used a Section 8 or a Section 21.

You should note that when using a Section 21 notice you cannot make a claim for monies to be repaid. You will need to weigh up whether you want to use a Section 8, for example, to claim outstanding rent arrears, or simply cut your losses and use a Section 21 to regain possession and put another tenant in place as soon as you can.

Serving Section 8 and Section 21 Notices: Do’s and Don’ts

Making Sure Your Notice Was Delivered, and That You Can Prove It

If a tenant successfully argues that they never received either your Section 8 or your Section 21 notice, the court will throw out the case and you’ll need to start again.

Therefore, it is crucial that you are able to prove the notice was delivered.

What are your options?

• You could use a professional process server to issue the documents and confirm receipt. This is a service widely used in the legal profession, and while the most expensive way to ensure your notice reaches the tenant, it is also probably the most reliable.
• You could choose to deliver the documents in person, but you’d still need proof of delivery. If you have a strained relationship with your tenant and they won’t sign anything to acknowledge receipt, then you could take someone along with you to video or photograph you handing over the notice.
• As mentioned earlier, you could also opt to have documents delivered in the post on a “signed for” basis. You could even just send two notices from different post offices. So long as you have certificates of postage from each location it is unlikely a tenant could convincingly argue to a judge that both were lost in the post.

Never Take Things Into Your Own Hands or Act Outside of The Stated Procedures

We fully understand that as a landlord, you want to regain possession of your property as quickly and as effectively as possible. While you may find the process frustrating, you have to follow it if you want to regain possession and not be in a position where action can be taken against yourself. You can be prosecuted if you are seen to have interfered with the comfort of tenants, including the stopping of services like utilities that would impact on the tenants’ ability to live in the property.

Anything that you specifically do outside of the serving of a Section 8 or a Section 21 notice that may cause the tenant to leave the property may be seen as unlawful. This could therefore lead to you being found guilty of conducting an illegal eviction. Landlords convicted of this offence face a fine or imprisonment, although there has been criticism in recent years that the fines being handed out are inadequate.

To ensure you are not liable to be prosecuted, you should:

• Not turn up unannounced at the property and start banging on the door (you can attend the property to deliver the Section 8 or Section 21 notice)
• Not turn off the utilities, either manually at the property or by cancelling accounts if they’re still in your name
• Not enter the property when you know the tenants are not there and change the locks
• Not make any threats to the tenant, in person, in writing, or otherwise
• Not enter the property and remove any of the tenant’s belongings
• Not attempt to physically remove the tenant from the property

Make sure you don’t take the law into your own hands.

Evicting Tenants

Evicting tenants is something you probably don’t want to do, but sometimes, for a variety of reasons, you have no choice but to do so. Follow this guide to ensure you understand the reasons why you may use a section 8 or a section 21 notice.

Remember that you should take legal advice if you are unsure about where you stand or what you need to do next.