Tenancy Answers - AST Tenants NOT in Breach of Contract
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How to Evict a Tenant who is NOT in breach of their tenancy agreement

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You can use either section 21 of the 1988 Housing Act, or certain clauses of section 8.
 

Section 8

Section 8 has a number of 'non-fault' grounds that can be cited as reasons to end the tenancy. 
 
Grounds 1 - 8 are mandatory - if the ground is met at the time the section 8 notice is served AND when the case is heard in court, then the judge can not refuse possession.
 
These grounds are:
 
Ground 1 - Landlord requires property for his own use
Ground 3 - Required as a Holiday-Let (14 day notice)
Ground 5 - Required for use by a Minister of Religion
Ground 7 - Original Tenant deceased
 
Grounds 9 - 17 are discretionary - the judge will decide if the landlords need is sufficient to warrant evicting the tenants.
 
Ground 9 -  The Landlord is providing alternative accommodation
Ground 16 - The tenancy was granted in relation to employment
 
The above is a very simplified list - most grounds have a number of requirements attached to them, and can be viewed here.  For all of the grounds mentioned above (except g3), there is a 2 month notice period between serving the notice and being able to commence possession proceedings.
 
The correct process for a section 8 eviction is outlined on our "AST Tenants in Breach of Contract" page
 

Section 21

Section 21 is used to seek possession when a tenancy is no longer within it's 'fixed term' - either at the end of an AST or during a Statutory Periodic Tenancy.
 
There are 2 types of Section 21 notice, and it is critical that you use the correct one.
 
  • If your tenant is within the fixed term of their tenancy at the time of service, then you need to serve a section 21(1)(b) notice, giving a minimum of 2 months notice.
  • If your tenants fixed term is over at the time of service, you need to serve a section 21(4)(a) notice giving a minimum of 2 months notice and expiring after the final day of a tenancy period.
 
If rent is due monthly, the last day of a tenancy period will always be the same day of the month as the last day of the fixed term.
 
There is no specific format for a section 21 notice, however there are a number of templates available on the internet.
 
A section 21 notice will not be valid if:
  • For tenancies begining on or after 6/4/2012: Any deposit was not protected within 30 days of the commencement of the tenancy
  • For tenancies begining before 6/4/2012: Any deposit was not protected by 5th May 2012
  • At the time of service, the rental property was a licensable HMO and there was no license applied for or obtained.
  • There is less than 2 months notice from service date to expiry date of an s21 [if mentioned.*]
  • The expiry date of a s21(1)(b) - if mentioned - is before the end of the tenancy*
* Common practice is for there to be an expiry date on a s21(1)(b) and it is expected by many district judges.  However there is no requirement in the legislation for an expiry date.
 
* There is also no requirement for an expiry date on an s21(4)(a) if the following wording is used "TAKE NOTICE that possession is required, by virtue of section 21(4) of the Housing Act 1988, of the dwellinghouse known as .............. at the end of the period of your tenancy which will end after the expiry of two months from the service upon you of this notice".  (Lower Street Properties Ltd v Jones [1996] 2 EGLR 67, CA)
 
If you apply for possession within the first 6 months of a tenancy, you will not be granted possession before the 6 month point.
 
You can not seek possession under this section during the fixed term of a tenancy agreement unless you have activated a break-clause.

How to Proceed

You will need to obtain proof of service of your section 21 notice.  The only legally safe way to serve the document is by hand (take a witness and obtain a statement from them) UNLESS the tenancy agreement specifies other acceptable means of service. If this is not practical, you could consider sending 2 copies by first class post from different post offices - obtaining a free certificate of posting. Many judges will accept this as proof of service 2 working days later, but unless it is specified in the agreement, they do not have to. Do not use 'Special Delivery' or 'Recorded Delivery' as the tenant can refuse to accept these.
 
Whichever is later between 2 months after service (if no expiry date is shown - see * above), or after the notice period expires you can apply to the court for a possession order. 
 
If you have both the first and latest/current written tenancy agreement then you can use the accelerated proceedure by completing form N5b and submitting it to the court with your fee of £175 and the various paperwork the form asks for.  If the possession is not defended, there will be no hearing and a judge will make a decision in 14-28 days.  If the possession is defended, a hearing will be required and this will delay the decision by 2-4 weeks or more.  If time is not critical, the process in the next paragraph is slightly cheaper.
 
If you have only an oral tenancy agreement, or you want to also claim for arrears, you can not use the accelerated proceedure.  Complete forms N5 and N119 then submit to the court with your fee of £175.  A hearing will be required, which will usually take place 4-6 weeks after you submit the claim.
 
In both cases, the tenant will be given at least 14 days to go and, in the case of an s21(1)(b) will be given at least until the end of the fixed term.
 
If the tenant still refuses to go, you will have to request a warrant for possession by completing court form N325 and paying a fee (currently £110). The warrant for possession in effect instructs court bailiffs, however this can be a lengthy process as the bailiffs do not only carry out property possessions and can be very busy - do not be surprised if this process takes 6 weeks or more.

DO NOT be tempted to use any process other than shown above. To do so will almost certainly be illegal eviction, which is a criminal offence and carries potentially heavy penalties.