Evicting a residential tenant
Section 21 of the Housing Act 1988 permits landlords to recover possession of their property after ending a lease agreement with their tenants. The landlord can serve a section 21 notice on a tenant without giving any reasons for terminating their tenancy. Section 21 applies to terminating Assured Shorthold Tenancies (AST). AST are the most common types of tenancies, in order to qualify they must start after 15 January 1989, be privately rented properties (as opposed to commercial use) and serve as the tenants’ main accommodation. All new tenancies automatically become ASTs unless stated otherwise in the agreement.
When and how to use section 21 Housing Act
The nature of letting property is such that at the end of agreed period of time or at termination of a lease, the landlord is entitled to get his property back from the tenant who ceases to have any rights to it. To recover possession of his property lawfully the landlord must follow a correct legal procedure and serve an eviction notice such as section 21. This notice can be served at any time during the fixed term tenancy (where the agreed end date is specified) or periodic tenancy (which rolls over monthly or quarterly depending on the agreement).
The process of serving section 21 notices depends on the type of tenancy agreement the landlord has with the tenant.
Fixed term assured shorthold tenancy eviction
In this type of AST the landlord must give the tenant a minimum 2-month written notice of his intention to recover possession of the flat or house that the tenant is occupying. The period of 2 months starts when the tenant receives the notice and they are required to give possession after the 2 months but can stay in the property until then.
Periodic residential tenancy termination
The procedure for this type of AST is slightly different due to the nature of the agreement, which rolls over after the fixed term comes to an end. If a tenancy has become periodic because of the original fixed term ending, then the landlord must give an at least 2-month notice, which ends on the last day of the tenancy. This can vary depending on the periods when the rent is paid and whether the tenancy rolls over weekly, monthly, quarterly etc. If the rent is paid monthly then the period of tenancy is one month and the 2-month notice will expire on the day of a month the rent is due.
What happens if the tenant doesn’t leave?
If the tenant does not leave the property at the expiry of the 2 months given by the section 21 notice, the landlord can apply to court for a possession order. That is why the following of a correct legal procedure by the landlord is of an utmost importance. If the right procedure was complied with, then the court has no other choice but to grant the possession order. This forces the tenant to leave and, if they still refuse, the landlord has got a right to request the court’s bailiffs to evict the tenant.
Things to look out for
The landlord’s behaviour during the eviction process is of importance. If they do anything to try to force the tenant out of the property by using illegal means then the tenant will have the right to claim damages for illegal eviction.
Harassment – beware trying to retake possession of residential property yourself
It can include anything the landlord does to make the tenant unsafe or force them to leave such as:
Failing to provide gas, electricity or water in the property
Stopping the supplies of gas, electricity or water
Refusing to perform the required repairs
Threatening the tenant
Unlawful tenant eviction
The landlord must serve section 21 on a tenant or await the possession order from the court. If they decide to take matters in their own hands the eviction will be illegal, such as if they change the locks in the property without giving the tenant a key or evict the tenant without the court order. Victims of harassment or illegal eviction can claim damages from the court as a result of their landlord’s behaviour.
We can help if you are a Landlord who needs to serve a section 21 notice and to pursue a possession order. This is a tricky and technical area of the law so it’s important to get it right.
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