Ending a Tenancy
Introduction
Ending an Assured Shorthold Tenancy can be a legal minefield for a landlord.
This blog post attempts to explain the relevant law and the common pitfalls to give some guidance.
It is very important to note that various criminal offences apply to evicting a residential occupier (see further on this below). You must always get a court order to evict a tenant if they refuse to leave. Simple expiry of the notice does not give the landlord the right to reentry.
A Mention Of Licences
This post concerns itself with Assured Shorthold Tenancies (ASTs). ASTs are overwhelming the most common tenancy in England. But they are not the only type, so caution must be exercised. A tenancy created after 28th February 1997 will automatically be an AST, but tenancies older than this are likely to be a different form of tenancy.
Additionally, some residential occupiers will be licensees, rather than tenants. Common examples of licensees include lodgers. The distinction can be legally complex but, at its most simplistic, it involves the tenant having “exclusive possession” of the property they occupy. This means that anyone sharing with their landlord is almost certainly a licensee.
This difference is important as licensees do not have the protection granted to tenants and the processes summarised in this post do not apply to them. You can instead evict licensees mere reasonable notice.
If you are uncertain what type of occupier a tenant is, seek professional advice.
Coronavirus Update
The coronavirus pandemic has resulted in emergency legislation that affects both landlords and tenants. The bulk of this note relates to the usual process. Changes resulting from emergency legislation will be addressed here and this section will be updated.
Please note that the law is likely to change quickly, and the legislation allows the government to amend the time limits, should the emergency continue.
Possession proceedings are no longer stayed and all warrants can be executed.
UPDATE 25th September 2021:
The Coronavirus Act 2020 (Residential Tenancies and Notices) (Amendment and Suspension) (England) Regulations 2021 (SI 2021/994) were laid before Parliament on 8 September 2021. From 1 October 2021, the minimum notice period to be given in a section 21 notice will revert to two months, and the periods for section 8 notices will revert to two weeks.
Section 21 Or Section 8 Notice?
There are two processes to evict a residential tenant, the section 8 process, and the section 21 process. These are both set out in the Housing Act 1988.
The section 8 process is the process that can be used during the fixed term of a tenancy as it is (usually) a ‘fault’ eviction, i.e. that the tenant has committed some breach of the tenancy and can be evicted despite the existence of a fixed term. This is process that is commonly used for rent arrears, although numerous other grounds are available.
You can only use the section 21 process after the expiry of the fixed term tenancy. This is because it is a ‘no fault’ eviction and is essentially the landlord requesting their property back after the agreed term has expired.
I consider these two processes in more detail below.
Section 8 Process
I shall begin with the occasionally more complicated section 8 process. This is the only process available to landlords during the fixed term of a tenancy. They cannot use the section 21 process during a fixed term of a tenancy.
This (usually) alleges some form of fault on the Tenant, most commonly arrears of rent.
The Housing Act 1988 sets out strict Grounds using which you may evict a tenant during the fixed term of their tenancy. These Grounds can be found in Schedule 2 of the Housing Act 1988, but Ishall summarise the common ones in this post. The Grounds are divided into mandatory and discretionary grounds. It is preferable to rely upon a mandatory ground because, if you can prove it, a judge must award possession. However, it is common and usual to rely on as many grounds as possible.
For the sake of brevity, Ishall focus on the most common grounds, but readers should be aware that there (currently) 20 different grounds in the Act and consult the full list.
Rent Arrears
The most usual ground to seek an eviction on is significant rent arrears (Ground 8). If you can establish at least two months’ rent arrears (for tenancies that pay monthly rent) then mandatory possession must be granted.
There are also discretionary Grounds relating to some level of rent arrears (Ground 10) and persistent late payment (Ground 11) that are usually combined with Ground 8.
Breach of Tenancy Terms
Another common ground for eviction is that the Tenant has broken a term of the tenancy (other than rent payment). This ground (Ground 12) is frequently included in possession proceedings but, as it is a discretionary ground, it is often coupled with other grounds.
Criminal Activity by the Tenant
Landlords often ask whether it is possible to evict a tenant because, for example, they have been arrested. This is always a difficult and fact specific situation, but usually the answer is that it is not possible to rely on a mandatory ground.
The relevant mandatory is Ground 7A but (along with other criteria) this relies on a “conviction of a serious offence”. First, it is clear that a simple police investigation, and even an arrest or charging decision, is not enough for this ground. The Tenant must be convicted of the offence. Second, the offence must be a serious one as defined by law. This can be a hard bar to overcome.
It is worth noting that Ground 7 also includes grounds for evictions based on breaching injunctions related to anti-social behaviour and related matters.
The discretionary grounds that are often used with this behaviour include the aforementioned Ground 12 and Ground 14, which relates to causing a nuisance to neighbours.
How much notice does a section 8 notice have to give?
This depends on the ground relied upon, but for the grounds above, the key periods are:
Significant rent arrears: Two weeks
Some rent arrears: Two weeks
Persistent late payment: Two weeks
Breach of tenancy terms: Two weeks
Nuisance to neighbours: Proceedings can be brought immediately
Criminal activity: One month
What form must the notice be in?
All section notices must be in Form 3 to be valid.
Section 21 Process
The far more common form of eviction is the Section 21 process, known as a “no fault eviction”.
The first, perhaps most important, thing to note about this process is that it is not available if the Tenant is on a fixed term tenancy. If the tenancy has since rolled into a statutory or periodic tenancy, or was periodic from the outset, then this process is available.
The process is somewhat straightforward, but has many legal hurdles. Section 21 notices must be in Form 6A and must give at least two months’ notice of the date for the tenant to leave.
However, it is not possible to serve a section 21 notice if certain legal formalities regarding the tenancy have not been done. Landlords should, therefore, ensure that all the following are complied with before issuing a section 21 notice as errors with these formalities may well invalidate the notice.
Deposit Protection has been completed properly.
The relevant Prescribed Information regarding deposits has been provided to all relevant people.
The Tenant was provided the Gas Safety Certificate, when applicable.
The Tenant was provided the Electrical Safety Certificate, when applicable.
The Tenant was provided an Energy Performance Certificate, when applicable.
The Tenant has made no complaints regarding the landlord or the condition of the property.
The Tenant has not obtained a breathing space moratorium or a mental health crisis moratorium under the Debt Respite Regulations.
If you are unsure of whether you are able to serve a section 21 notice contact your solicitor.
Caution Of Criminal Offences
It is important to note that it is a criminal offence to evict a tenant without following the procedures set out here. This includes changing the locks or evicting the tenant at the end of a fixed term without notice.
The offences created by the Protection from Eviction Act 1977 have a range of penalties, including imprisonment. It is therefore extremely important that a landlord understands the process and ensures that any eviction is legal. If in doubt, speak to your solicitor.
Closing
As always, this blog post should not be taken to be individual legal advice as every situation is different. The laws related to eviction are complex and varied. It is impossible to cover everything in one note. However, this is a summary of the key points. Some generalisations have been made and you should speak to a solicitor if you are unsure.