Tenancy Answers - AST Tenants in Breach Of Contract 2
Welcome, Guest

Evicting A Tenant in Breach of Contract

Options Available

Section 8 of the 1988 Housing Act is the process usually used for breaches of the tenancy - in particular, unpaid rent.  You can also use the 'no fault' section 21 process, Section 21 does have the advantage that it does not always require a court hearing but can not be used to obtain an eviction within the fixed term and will not result in an order for missing rent.

Grounds for Eviction

Section 8 has a number of 'at 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 - although he may give the tenant extra time to comply with the requirements.  Ground 8 can not result in possession before the end of a fixed term tenancy unless the tenancy agreement makes provision for this.
 
The only ground in this section that is directly related to tenants breach of contract is ground 8.  Ground 8 is used where tenants have not paid their rent for some time.  The actual amounts are
(a) if rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid;
(b) if rent is payable monthly, at least two months’ rent is unpaid;
(c) if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and
(d) if rent is payable yearly, at least three months’ rent is more than three months in arrears; 
Note the difference between 'unpaid' and 'arrears'.  One day after a tenant misses a monthly rent payment, he has one month unpaid - but is only 1 day in arrears.

The remaining 'breach of contract' grounds are discretionary - ie the judge will have to make a decision if the breach is severe enough to warrant evicting the tenant.
 
These grounds are:
 
Ground 10 - some rent is unpaid
Ground 11 - rent has been persistently late
Ground 12 - non-rent breach of tenancy
Ground 13 - Damage or deteriation of the property
Ground 14 - Nuisance or illegal activity (No notice)
Ground 15 - Damage or deteriation of furniture
Ground 17 - Tenancy obtained under false pretences
 
For all of the grounds mentioned above (except g14), there is a 14 day notice period between serving the notice and being able to commence possession proceedings.  Like section 8, these can not be used during a fixed term UNLESS the tenancy agreement says possession can be sought on these grounds.
 

How to Proceed

The section 8 notice must be served in a specific format (form 3) and you must obtain proof of service.  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.
 
After the notice period expires, you can apply to the court for a possession order.  You can either fill in court forms N5 and N119, paying a fee of £175, or alternatively, you can use the Possession Claim Online website which is cheaper at £100.

It will take around a month - maybe longer - before the hearing takes place and if the judge grants a possession order, the tenant will be given at least 14 days to go, maybe considerably more.
 
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.
 
If your claim relates to unpaid rent then the judge can also issue an order that the tenant pays any rent owed.  If the tenant ignores this order, you may have to take enforcement action which could include freezing his bank account, using bailiffs or obtaining an attachment of earnings order.

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.