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. 

Important Information for All Landlords

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 by serving a Section 21 or Section 8 Notice).  Even if an initial fixed term of 6 months has come to an end according to the tenancy agreement, the landlord still needs to serve notice and proceed to court if the tenant remains in place.  It is illegal for anyone other than a court-appointed bailiff to evict a tenant.

Renting in East Staffordshire is our web page that provides more information on the responsibilities of both landlords and tenants.

The Government also provides information on how to legally repossess rented property.

Section 21 Notice

  1. A Section 21 Notice is the most common notice given by landlords.    The purpose of a Section 21 Notice is to formally ask an Assured Shorthold Tenant to leave.  If the tenant remains the Section 21 Notice enables the landlord to obtain a court order for possession.  A Section 21 Notice does not require the landlord to give any reason for asking the tenant to leave.  If served correctly the court will have no discretion and must award possession.  An "invalid" Section 21 Notice is one that the court would reject.  In order to be valid, a Section 21 Notice usually has to satisfy the criteria listed below.  If an invalid notice has been served because one of these criteria hasn't been met, the landlord will need to serve a new Section 21 Notice from a new date after the error has been corrected.
  2. Form 6a must always be used as the Section 21 Notice if the tenancy started on or after October 1st, 2015.  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.  If landlords of these slightly older tenancies choose not to use Form 6a, there is no prescribed form - they can just write a letter as long as it includes all the necessary information.
  3. 2 calendar months' notice must be given from the date a Section 21 Notice is served (i.e. received by the tenant) to the date the tenant is asked to leave.  This requirement applies to all Assured Shorthold Tenancies regardless of the tenancy start date.
  4. Deposit protection rules must have been satisfied for any Section 21 Notice to be valid.  If the rules have not been satisfied, the court will reject the Section 21 Notice.  This applies to all Assured Shorthold Tenancies regardless of the tenancy start date.
  5. Retaliatory eviction is not permitted by the law for tenancies that began on or after October 1st, 2015.  Retaliatory eviction usually means that if the landlord is seeking repossession following complaints made by the tenant about the condition of the property, and the Council serves a relevant notice on the landlord as a result, the landlord won't be able to use the Section 21 Notice procedure.
  6. How to Rent is a booklet that must be given to tenants whose tenancy began on or after October 1st, 2015 (this is not necessary for tenancies that began before October 1st, 2015).  Landlords should keep proof that it has been given.  If it has not been given, a Section 21 Notice will not be valid - the Court will dismiss a repossession case brought by the landlord. 
  7. An Energy Performance Certificate (EPC) must be given to tenants whose tenancy began on or after October 1st, 2015 (again, not necessary for tenancies that began before October 1st, 2015).  Landlords should keep proof that it has been given.  If it has not been given, a Section 21 Notice will not be valid.
  8. A Gas Safety Certificate is a legal requirement for ALL tenancies with gas, regardless of the effect on the validity of a Section 21 Notice.  But in the case of tenancies that began on or after October 1st, 2015, if a property requires a Gas Safety Certificate and does not have one, then any Section 21 Notice served will be invalid. If a tenancy started before October 1st, 2015, then the landlord's legal failure to issue a Gas Safety Certificate won't make a Section 21 Notice invalid, but a landlord still risks prosecution if no Gas Safety Certificate has been issued when it is required. 

In respect of points 6, 7 and 8 please note: 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.  However, Form 6a must still be used if that replacement tenancy started on or after October 1st, 2015.

Please now proceed to read the following points. 

  1. 4 months of the tenancy must have elapsed before a Section 21 Notice can be served.  If 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))
  2. There is a 6 month time limit within which Court proceedings must be commenced.  This period starts on the date a Section 21 Notice is served.  The period is 4 months of expiry if notice given is more than 2 months.
  3. 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 (but note this only applies where tenancies started on or after October 1st, 2015).
  4. The tenant’s correct name and address must be given on the notice, regardless of the date the tenancy started.
  5. Proofs of service should be kept by the landlord eg Certificate of Service form N215 to show to the court
  6. 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 even if they remain after the "required by" date given on the Section 21 Notice.

What is a "Replacement Tenancy"?

A replacement tenancy, according to The Housing Act 1988, Section 21(7) is a tenancy:

which comes into being on the coming to an end of an assured shorthold tenancy, and under which, on its coming into being, the landlord and tenant are the same as under the earlier tenancy as at its coming to an end, and the premises let are the same or substantially the same as those let under the earlier tenancy as at that time

Section 8 Notice

  1. 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 one of the Grounds for eviction as set out in the 1988 Housing Act.  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 criteria for a valid Section 21 Notice listed above don't apply to a Section 8 Notice.  However, to maximize a landlord's chances of success in the Court, the landlord should note the following in respect of a Section 8 notice.
  2. Has the Prescribed Form 3 been used?
  3. Have the correct Grounds been cited, exactly as specified in the Legislation?
  4. Have you provided the correct minimum notice period?  (Can be 2 weeks or more depending on the Ground cited)
  5. Have you provided adequate evidence of the Grounds?
  6. Have you kept a copy? (and preferably proof and declaration of service - eg Certificate of Service form N215)
  7. 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
  8. 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
  9. Section 8 Notices are not affected by the rules on retaliatory eviction.  Landlords don't need to supply the How to Rent Book or EPC, and the absence of a Gas Safety Certificate, while still illegal if one is required, does not invalidate a Section 8 Notice. 
  10. 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

Possible Exceptions

Section 8 and Section 21 Notices described above are only for Assured Shorthold Tenancies.  If you would like to discuss exceptions then please contact the Landlord Relationship Manager on 01283 508149.  A Section 8 or Section 21 may not be appropriate in the following examples:-

  1. Lodgers (where the landlord lives in the same dwelling as the lodger)
  2. Houses converted to flats if the landlord lives in the same converted building as tenants
  3. Some tied accommodation such as pub accommodation provided by a corporate brewery
  4. Occupiers who are excluded from the protections of the Protection from Eviction Act 1977

Common Mistakes

  1. 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.
  2. 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.
  3. In general if any clauses in your tenancy agreement (or other contract) conflict with the law described here, the law itself will still override them
  4. More information is available at GOV.UK

How to apply for a Possession Order

  1. Following a Section 21 Notice - the 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.
  2. 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.
  3. 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.