Evicting your tenant
Disclaimer: The council accepts no liability arising from the following information. The council also gives no guarantee that using this page will prevent all errors, as there are many pitfalls for landlords who wish to serve notice and specific situations can differ from the general information given. You should consult a qualified legal representative if you need legal advice.
- lllegal Eviction is a criminal offence. The only way for a landlord to end a tenancy lawfully is to follow the correct legal procedure (eg Section 21 or Section 8 Notice)
- Renting in East Staffordshire is a web page that provides further information for both landlords and tenants
Section 21 Notice
A Section 21 Notice is the most common notice given by landlords. Its purpose is to end an Assured Shorthold Tenancy. It does not require the landlord to give a reason for repossession. If served correctly the court will have no discretion and must award possession. In order to be valid, a Section 21 Notice usually has to satisfy the following criteria:-
- Deposit protection rules must have been satisfied
- 2 calendar months' notice must be given from the date served to the date the tenant is asked to leave
From October 1st, 2015:-
If the tenancy began on or after October 1st, 2015
- Retaliatory eviction is not permitted by the law. This means that if the landlord is seeking repossession following complaints made by the tenant about the condition of the property, and the council has served a specific type of notice on the landlord as a result, the landlord won't be able to use the Section 21 Notice procedure. Section 8 Notices (described below) are not affected
If it is not a retaliatory eviction then the landlord can go ahead and serve the Section 21 Notice. In order for that Notice to be valid, the following documents must have been given:-
- How to Rent
- Energy Performance Certificate
- Gas Safety Certificate (but note that a Gas Safety Certificate is a legal requirement anyway for ALL tenancies with gas, regardless of the effect on the validity of a Section 21 Notice)
- Form 6a (this is a prescribed form which is the actual Section 21 Notice)
If it is a replacement tenancy and the tenancy it replaces started before October 1st, 2015, then you can still serve a valid Section 21 Notice even if you haven't given the tenant How to Rent, the EPC and the Gas Safety Certificate - but Form 6a must still be used if that replacement tenancy started after October 1st, 2015.
Also please note that for all tenancies that began on or after October 1st, 2015:-
- A Section 21 Notice can't be served before 4 months of a new tenancy have elapsed (where the tenancy is a replacement tenancy, this 4 month period is calculated by reference to the start of the original tenancy and not the start of the replacement tenancy - see The Housing Act 1988 Section 21(4B))
- Court proceedings must be commenced within 6 months of the Section 21 Notice being served
- or 4 months of expiry if notice given is more than 2 months
- If a tenancy ends before the end of a rent period for which rent has already been paid, the appropriate proportion of the rent must be repaid to the tenant
Before October 1st, 2015:-
If the tenancy started before October 1st, 2015 then the rules under the heading "October 1st, 2015" above do not apply. However, the rules below under the heading "For all tenancies" must be followed
- Note that although Form 6a does not have to be used for a tenancy that began before October 1st, 2015, landlords can choose to use it if they wish
For all tenancies:-
The following rules apply to all tenancies, regardless of the date the tenancy started:-
- The tenant’s correct name and address must be given on the notice
- The landlord must keep copies of all documents and proofs of service eg Certificate of Service form N215 to show to the court
- It is illegal for anyone other than a court-appointed bailiff to evict a tenant
- An application for possession must be made to the court if the tenant has not left by the date requested in the Section 21 Notice. It is illegal to directly harass tenants into leaving.
- Provided a Section 21 Notice is valid, the court has no discretion – it must award possession
Section 8 Notice
A Section 8 Notice is different from a Section 21 Notice. It can be served separately from, or at the same time as, a Section 21 Notice. In order to serve a Section 8 Notice a landlord must state the reason (a reason does not have to be given on a Section 21 Notice). On being served a Section 8 Notice, a tenant is not asked to leave by a certain date given on the notice. The Section 8 Notice simply informs the tenant that the landlord intends to apply to the County Court for a possession order, and enables the landlord to do that once the date in the notice has passed. Page 3 of the Section 8 Notice states how long the notice period is for each ground. The following provides a quick checklist for serving a Section 8 Notice:-
- Has the Prescribed Form 3 been used?
- Have the correct Grounds been cited, exactly as specified in the Legislation?
- Have you provided the correct minimum notice period? (Can be 2 weeks or more depending on the Ground cited)
- Have you provided adequate evidence of the Grounds?
- Have you kept a copy? (and preferably proof and declaration of service - eg Certificate of Service form N215)
- A Section 8 Notice can be used to commence eviction at any time, including during a fixed term and a periodic tenancy, on one or more of the statutory grounds
- Note that non-compliance by the landlord with the deposit protection rules does not affect the validity of Section 8 notices, unlike a Section 21 Notice which is invalid if the deposit rules have been broken
- Section 8 Notices are not affected by the rules on retaliatory eviction
- An application for possession must be made to the court if the tenant has not left by the date requested in the Section 8 Notice. It is illegal to directly pressurise tenants to leave
Is this page relevant to me?
Section 8 and Section 21 Notices are only for Assured Shorthold Tenancies. They wouldn’t apply to:-
- Lodgers (where the landlord lives in the same dwelling as the lodger)
- Houses converted to flats if the landlord lives in the same building as tenants
- Some tied accommodation like pub accommodation provided by a brewer
- Occupiers who are excluded from the protections of the Protection from Eviction Act 1977
Some landlords mistakenly believe that in certain situations a tenancy does not exist when really it does. These misconceptions often arise where:-
- no written tenancy agreement was given or it wasn’t signed, or
- the fixed term of a written agreement has expired, or
- the tenancy has become periodic by default following expiry of the fixed term, or
- the tenant has failed to pay rent or has broken the tenancy agreement in another way
But in all of the above situations, an Assured Shorthold Tenancy might actually exist, therefore a Section 21 and/or Section 8 Notice would still need to be served. If you have other reason to believe the situation may not be an Assured Shorthold Tenancy, please contact the Council on 01283 508149 to discuss this further.
- In general if any clauses in your tenancy agreement (or other contract) conflict with the law described here, the law itself will still override the
- More information is available at GOV.UK
How to apply for a Possession Order
Following a Section 21 Notice
- A Section 21 Notice informs the tenant that you will require possession, and the council encourages tenants to leave by the date specified in a valid Section 21 Notice. However if the tenant fails to leave and you continue to require possession, you must then apply to the County Court for a possession order. The tenant has the legal right to stay until the Court grants possession. If the tenant does not leave by the end of the notice period then only a court can force them to leave.
If the tenant has a written tenancy agreement and you do not wish to claim rent arrears as well as possession, you can apply for a possession order using the Accelerated Possession Procedure. In other circumstances use the 'Standard Possession' Procedure. Submit any forms to the relevant County Court.
Following a Section 8 Notice
- Once a valid Section 8 Notice has expired you can use the Government's website to follow through the possession procedure
- Either submit the form N5 to the relevant County Court, or if seeking possession on grounds of rent arrears using Possession Claims Online.
Cost of a Possession Order
A fee is payable to the Court when you seek possession. View the latest fees.
Illegal Eviction and Harassment
Unless you are a resident landlord or have provided the accommodation rent-free, you cannot remove or exclude a tenant yourself; it is only a court appointed bailiff executing a Possession Order that can remove them and their possessions. Evicting a tenant yourself and harassing them to leave are both criminal offences for which the Council will wherever possible prosecute you. Your tenant can also sue you for damages and restoration of the tenancy. It is no defence to say that they have not paid the rent or have breached the tenancy agreement.
Summary of Information
|2 months' notice||2 month's notice must be given in a Section 21 Notice. 2 months ends on the corresponding date in two months time from the tenant receives it - eg 2 months from the 4th January is 4th March, not 3rd March or 1st March (8 weeks) or 5th March (60 days), so the earliest date a notice served on 4th January can require possession is ‘after 4th March’. Adding a few extra days to the "leave by" date of the notice makes validity of the notice more certain. Please be aware that a notice will not necessarily be deemed served on the day you send it to the tenant, as the tenant must have had an opportunity to receive it with at least 2 clear months until the "leave by" date. Therefore if you are going to post a notice to the tenant, you will need to allow time for delivery to the tenant - 3 days is suggested for first class Royal Mail post.|
|Assured Shorthold Tenancy||An Assured Shorthold Tenancy is a type of tenancy that was introduced by the Housing Act 1988. The vast majority of tenancies in the private rented sector today are Assured Shorthold Tenancies. ASTs come into being either through verbal or written agreement by an occupier to give exclusive possession of a whole property, or part of it, to another person in return for a regular payment. It does not include situations where the landlord lives in the same dwelling as a tenant. Some tenancies that pre-date the 1988 Act still exist and are regulated by different laws – if this applies, please contact the Council on 01283 508149 below to discuss further.|
|Deposit Protection Schemes||Government-approved schemes that deposits must be protected in or a Section 21 Notice will be invalid|
|Deregulation Act 2015 – Sections 30 – 41||Legislation that introduced new rules on Section 21 Notices and Retaliatory Eviction|
|Exclusive Possession||This is a legal term which denotes that the tenant has the right (as in an Assured Shorthold Tenancy) to exclude anybody (including the landlord) from the specific dwelling or part of a dwelling that has been rented to them.|
|Fixed Term||There is usually a fixed term at the very start of an Assured Shorthold Tenancy. It is not usual to repossess a property where there is an Assured Shorthold Tenancy until the first six months have elapsed and in most cases, repossession before the end of six months isn't allowed. Where there is a written tenancy agreement, the fixed term period may be longer than six months – usually twelve months. After the fixed term has ended, if no replacement written agreement is signed, then the tenancy becomes “periodic”. This means the tenancy term repeats itself from one period to the next on the same terms as during the fixed term. The period is the same as it was when the tenancy was fixed - for example, running from one month to the next.|
|How to Rent||"How to Rent" is prescribed information (a booklet) that must be given to tenants where the tenancy starts on or after October 1st, 2015|
|Proof of Service||The Government's website gives information about keeping proofs of service after you give notice - you should always keep a copy. When a Section 8 or Section 21 Notice is served, a certificate of postage may sometimes be a good idea. Recorded delivery is helpful if the tenant accepts the mail but they may chose not. The safest options are hand delivery in the presence of an independent witness who signs a statement confirming that the notice was served, or (if you can) getting the tenant to sign and date a copy of the notice for you to keep. You can also use Certificate of Service form N215.|
|Protection from Eviction Act 1977||The law regarding illegal eviction or harassment|
A replacement tenancy, according to The Housing Act 1988, Section 21(7) is a tenancy:
|Repossession Procedure: Accelerated Form N5B||Court procedure following Section 21 Notice where tenant has a written tenancy agreement and you do not wish to claim rent arrears|
|Repossession Procedure: Possession Claims Online||For landlords seeking possession on grounds of rent arrears|
|Repossession Procedure: Form N5||Court procedure following Section 8 or Section 21 Notice in other circumstances|
|Repossession – Find the right court or tribunal||To find the correct local court to take your repossession claim to|
|Retaliatory Eviction||Guidance Note at GOV.UK|
|Repossession – Fees||Current Court Fees|
|Section 8 Notice – prescribed form||Form 3: notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy. Required under Statutory Instrument as amended|
|Section 8 Notice – statutory grounds||List of grounds for repossession where a Section 8 notice is used|
|Section 21 Notice||The source legislation - Housing Act 1988 Section 21|
|Section 21 Notice Guidance||Government Guidance for landlords serving a Section 21 Notice|
|Section 21 Notice (old template)||Template which can be used for pre-October 2015 tenancies|
|Section 21 Notice (new template)||Prescribed Form of Section 21 Notice for tenancies starting on or after October 1st, 2015 (Form 6a)|