Rogers & Norton News

Time to move on?

Thursday, February 2, 2017

It has recently been reported that a man had to be evicted from the James Paget University Hospital in Norfolk after occupying a bed “unnecessarily” for over two years.  Clearly, this is a very unusual situation and would have involved different procedures and considerations from those required in relation to residential properties, but what can a landlord do if they have a tenant who they want to move out?

Elizabeth Gibson, solicitor in the firm’s property litigation team, comments: Fortunately for most residential landlords, the process does not need to be as long as this, provided that they have complied with the law.  Most residential leases are now assured shorthold tenancies.  Where the tenant is not in breach of any of the terms of such a tenancy and you would like them to leave on or after the end of the initial fixed term the simplest way to do this is to serve what is known as a section 21 notice, which must give them at least 2 months to leave.

The key to being able to successfully regain possession of your property with minimum complication is to ensure that you comply with all statutory requirements at the outset of the tenancy.  This reduces the risk of your tenant challenging any notices that you may wish to serve in the future.  The most important requirements are as follows:

  • Ensure that if you take a deposit, it is protected in a government-approved scheme
  • Provide the tenant with an Energy Performance Certificate and a copy of a Gas Safety Certificate
  • Provide the tenant with the document entitled “How to rent: the checklist for renting in England”, as published by the Department for Communities and Local Government

 

A letting agent should be able to assist you in complying with these requirements if you are unsure.

Your duties no longer stop there.  You must also ensure that the property is in a safe and clean condition, as if a tenant complains to the local housing authority about the condition of the property and that authority subsequently serves you with an improvement or remedial notice, in some circumstances this can prevent you from serving a section 21 notice for 6 months of the service or of the end of suspension of that notice as this would be deemed to be a retaliatory eviction.

Assuming that the notice you have served is not defective, you can then apply to court for a possession order if your tenant does not move out one the notice expires.  The court then generally has no discretion other than to grant a possession order, unless the tenant is able to raise a successful challenge to the validity of the notice.

Where the tenant is in breach of certain terms of the tenancy (most commonly, where they are in arrears with their rent) or the landlord is able to make out any of the other specific grounds for possession listed in the Housing Act 1988 a section 8 notice can be served, even during the initial fixed term of the tenancy.  The amount of notice to vacate that needs to be given to the tenant will depend on which ground(s) are being relied upon.  The longest is two months, and as with a section 21 notice, if the tenant does not move out upon expiry of the section 8 notice you can issue court proceedings.  Depending upon what grounds for possession you are relying upon, in some cases the court has a discretion whether to grant a possession order and in others it is mandatory to grant such an order.

Once you have your possession order you must wait for it to expire before making the tenants leave your property.  If they do not comply with the order you can instruct a court bailiff to attend the property to evict them and change the locks.

The above only sets out a brief summary as to how to go about obtaining possession of a residential property.  There are many other requirements, particularly relating to the timing of service of notices, which must be complied with to guarantee that the notice will stand up in court.  We therefore recommend that you take your own legal advice before you take any steps to evict a tenant.

The property litigation team at Rogers & Norton has extensive experience of dealing with residential landlord and tenant repossession matters and would be pleased to assist you, from drafting the initial notice and the court papers to attending the hearing with you and instructing bailiffs to enforce the order.  Where there are rent arrears we can also assist you with recovering these and tracing your tenant where they have absconded.

The property litigation team can also assist you with a range of other property-related disputes, including:

  • Boundary disputes
  • Disputes over rights of way
  • Commercial rent arrears
  • Termination of commercial leases
  • Neighbour disputes
  • Dilapidations
  • Squatters

See our Commercial Dispute Resolution or Personal Dispute Resolution pages for further details.

Please Contact:

Elizabeth Gibson (01603) 675641 email eg@rogers-norton.co.uk

Bruce Faulkner (01603) 675608 email bwf@rogers-norton.co.uk