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Problem tenants

No matter how careful you are, there will sometimes be occasions when things go wrong.  Tenants can lose jobs and rent sometimes falls into arrears.  This may not necessarily be the tenant's fault.  Worse, tenants may breach other terms of their agreement, for example by damaging the property or by the way they use it.  While the situation may or may not be the tenant's fault, it is a big problem for the landlord, who of course may have his own outgoings, including loan finance payments, to meet.

In these circumstances a landlord needs to understand what he can and cannot do to remedy the situation. 

Unlawful eviction

The first and most important thing to understand is that a landlord cannot simply throw a tenant out on the street or change the locks.  This is sometimes called "black bagging".  A residential tenant who refuses to leave willingly can only be evicted by court order.

It is an offence unlawfully to deprive a residential occupier  of his occupation of premises or to attempt to do so.  It is a defence to show that the landlord believed, with reasonable cause, that the occupier had ceased to reside in the premises.  Thus, evicting a tenant without a court order is unlawful.  It can result in both prosecution in the criminal courts and a claim for damages by the tenant.   The damages awarded can be very high, being calculated on the difference between the market value of the property if it were sold with vacant possession and its value if it were sold subject to the tenancy (Housing Act 1988, section 28). 

The only exceptions to the rule about obtaining a court order are:-

• If a landlord shares occupation with the tenant;
• If the occupier has failed to vacate a property let for holiday purposes;
• If the accommodation is available to the tenant rent free; or 
• If the accommodation is in certain types of residential hostel. 

Where a person who is not a tenant occupies premises as a licensee, reasonable notice is required to force him to leave.  This is generally interpreted as being 4 weeks' notice.

Harassment

It is an offence to do acts likely to interfere with the peace or comfort of a residential occupier or members of his household, or to withdraw or withhold services reasonably required for occupation of the property as a residence if this is done with the intention of causing the occupier:-

• To give up occupation of the property; or
• To refrain from exercising any right or pursuing any remedy in respect of the premises.

This activity is generally called "harassment".

Examples are:-

• Cutting off services, such as water, gas or electricity.
• Threats or abuse.
• Making the premises less habitable, e.g. removing windows, doors or locks.

How to get it right

In order to obtain an court order, proceedings must be commenced in the County Court local to the property.  Before court proceedings can begin however, the tenant must be served with notice of the landlord’s intention to start the process that may ultimately lead to him having to give up possession. 

There are two routes open to a landlord who lets a property on an assured shorthold tenancy, but only one where the tenancy is an assured tenancy.

Assured shorthold tenancy only - notice requiring possession (section 21 notice)

A landlord can end an assured shorthold tenancy by serving on the tenant a notice requiring possession of the property under section 21 of the Housing Act 1988.  Lawyers commonly call this a section 21 notice.

In simple terms the notice must give the tenant at least two months' notice that the landlord requires possession of the property.  A section 21 notice can be served at any time after the creation of the tenancy.

But, if a section 21 notice is served with an expiry date which is earlier than the last day of the fixed term of the tenancy, the court will not allow the landlord to recover possession until the fixed term has ended.

There are two different types of notice.  It is important to use the right one or a possession action will probably fail.  These are the rules:-

• Where there is a fixed term and the notice is served on or before the last day of the fixed term, the notice must be given under section 21(1) of the Housing Act 1988.
• Where there is a fixed term and the notice is served after the fixed term has expired, the notice must be given under section 21(4) of the 1988 Act.
• Where there is no fixed term, the notice is also under section 21(4).

Examples of both types of notice can be found in   Forms.

There is one important rule to know when notice is being given under section 21(4).  This is that the notice must expire on the last day of a period of the tenancy. This means that if the tenancy runs from say, the 15^th of one month to 14^th of the next, the notice must expire on the 14^th of the month, but at least 2 clear calendar months in the future. Depending on the date of service, this can mean that in practice the actual notice period is more than 2 months.  It requires considerable care to get this type of notice right.  If the notice is wrong, it will be invalid and the court will not make a possession order.

It is easy to make a mistake and specify the wrong date in the notice.  Note however the following words at the end of the section 21(4) notice in   Forms:-

"...or on the day on which a period of your tenancy next expires after the end of two months from the date of service of this notice"

They look odd and they are odd.  What they do is cure any slight error made by the landlord as to the date mentioned in the section 21(4) notice.   Of course they may not cure a blatant error in the date mentioned in the notice.

It is advisable for a section 21 notice to contain the wording set out under the heading "Information for Tenant(s)".  If it does not, it may be ruled invalid by the court and any proceedings based upon it will then fail.

Both types of tenancy - notice seeking possession (section 8 notice)

This notice can be served on a tenant who has either an assured shorthold tenancy or an assured tenancy.  It is served under section 8 of the Housing Act 1988 and is commonly called a section 8 notice.

This notice does not rely on the fact that the tenancy has or will shortly come to an end due to time passing, but upon one or more of 16 "grounds for possession" contained in the Housing Act 1988. Reliance upon these grounds is the only way a landlord can recover possession in the case of an assured tenancy if the tenant refuses to leave voluntarily. The full text of all of the grounds are set out in   Forms. 

The most commonly used of these grounds are those relating to rent. They are grounds  8, 10 and 11. Of these, only ground 8 will, if the rent arrears are proved to the court, guarantee that you will get a possession order. This is known as a mandatory ground for possession. The other two rent based grounds will allow the court to make a suspended possession order (more of which later) if it feels it is just to do so. These are known as discretionary grounds for possession. The full text of the 16 grounds says which grounds are mandatory and which are discretionary.

The wording of the section 8 notice is very important. An example of this notice can be found in   Forms.  The grounds themselves set out the periods of notice required by each ground before court proceedings for possession of the property can start.  Some grounds need 2 months' notice, but each of the rent grounds only requires 2 weeks' notice.

It is also very important that the FULL TEXT  (exactly as set out in the Act) of each ground relied upon is included in the notice and that a brief explanation is given as why the ground is relied upon.

In   Forms there is a blank form of section 8 notice and an example of how that form might be used in a typical rent arrears case.  If using that version, do not forget to tailor it to the facts of the actual case.  The arrears figures in the form are examples only.

Which to use?

In "bad tenant" cases, there can be finely balanced decisions to be made as to which is the best type of notice to use.  Appropriate professional advice is desirable.

Service of the notice

Where there is more than one tenant, every notice to be served must be served on each of them individually.

While there is normally no requirement for a notice to be served personally (as opposed to by post), personal service is advisable.  Otherwise the tenant may claim that he did not receive the notice.

Which ever method of service is used, the landlord should keep an accurate, written record of how, when and where service was effected in case the tenant disputes service.

Court Proceedings

If, after the notices are served the tenant still refuses to leave, the landlord will have to commence court proceedings for possession.

There are two ways this can be done.

• If the claim for possession is based on a section 21 notice, you can use the accelerated possession procedure. This is usually dealt with by the court on paper, unless the tenant shows that there is a defence to your claim, which in these cases is quite rare.
• If the claim is based on a section 8 notice, there must be a court hearing.  After issue of the proceedings, the court will fix a date for a first hearing. This is usually about 6 to 8 weeks after the date of issue. If there are no disputes about, for example, the level of rent arrears, the court can make a possession order at that first hearing.

If however, the tenant can show that there is a dispute, the case is likely to be adjourned to a later date to allow more time for the dispute to be examined by the court and usually for the parties to provide further evidence.

Although accelerated possession proceedings are quicker in themselves, they will usually only take place after the expiry of a 2 month notice. Section 8 proceedings take longer from start to finish, but may begin as soon as 2 weeks after the notice is served. Overall, there can be very little difference in terms of timing between the two routes.

The main advantage of section 8 proceedings is that as well as asking the court to give possession of the property to the landlord, a county court judgement for any outstanding arrears can also be sought.

Possession orders

Where proceedings are based on a section 8 notice, there are two possible types of possession order that a court can make.

Firstly, a final possession order.  This is the order that the court will make if the claim is based on a mandatory ground.  The usual order is that the tenant give possession of the property to the landlord within 14 days.   The court has power to lay down a longer period of up to 42 days.

Secondly, a suspended possession order (SPO). This is an order where the court will give possession to the landlord, but suspend that possession actually taking place unless or until the tenant breaches certain terms ordered by the court.  For example, the most common SPO is where rent is in arrears but the landlord has not relied on a mandatory ground. The court may order that possession be suspended upon payment by the tenant of the rent each month (if that is the term) PLUS a sum towards the outstanding arrears. Under this order, the tenant will be allowed to remain in the property provided he sticks to the terms of the order.

 If the order is breached, however, the landlord can apply for a possession warrant (where the bailiffs will evict the tenant – more of which below) without having to go back to see a judge.

The SPO can be a powerful tool in recovering rent from a tenant who has fallen behind but is otherwise a good tenant.

Adjournments

A tactic often employed by tenants in court proceedings based on rent arrears in particular is to ask the court to adjourn the hearing on the first occasion.  Where a landlord’s claim is based on discretionary grounds (such as grounds 10 and 11) the court can often be persuaded to adjourn proceedings.

This is particularly so where a tenant says that he has applied for housing benefit but that the claim has not yet been processed.  In those circumstances the court will often allow the tenant the benefit of the doubt in the hope that the housing benefit claim will clear some or all of the arrears before the matter next comes before the court.  This can be annoying and costly for a landlord and may sometimes be avoided if the tenant has a history of persuading the court to adjourn but not coming up with the rent during the period of the adjournment.

Enforcing a possession order 

Even having obtained a possession order from the court, a landlord cannot simply take it upon himself to evict the tenant.  He must apply to the court for a possession warrant.  This will lead to the court bailiffs setting a date for the eviction and ultimately removing the tenant if he refuses to leave voluntarily by the date of the eviction.  It is unlawful for a landlord to take steps to enforce the possession order himself. 

Once a date for eviction is fixed, the landlord will need to notify the bailiff at least 5 days before the date for eviction if the landlord thinks that assistance from the police will be needed.  If no police assistance is needed, the landlord will need to confirm with the bailiffs that the eviction will still go ahead on that date no less than 3 days before the eviction.

On a practical level, the landlord will need to ensure that he has a locksmith available so that entry into the property can be forced if the tenant refuses to open the door and so that the locks throughout the property can be changed once the tenant is evicted.  If the landlord himself cannot attend, it is useful for somebody with authority to give instructions to the bailiff to be there in case the tenant makes any acceptable last minute offers that would avoid the eviction.

Application to suspend warrant of possession

Even at this late stage, and where an eviction date has been fixed, a tenant can still make an application to the court for an order suspending the possession warrant.  Where a possession order was made based on a discretionary ground, the court can in effect reconsider the decision of the original judge and order that the possession warrant be suspended.  This can happen if, for example, the tenant has now obtained money to pay off the rent arrears which he did not have at the time of the original hearing. 

If however a possession order is made following the accelerated procedure or on a mandatory ground, the court will not have discretion to suspend.  Applications made in these circumstances are at best annoying and at worst expensive for a landlord.

In any event the hearing to deal with the tenant’s application will be dealt with urgently by the court and obviously before the date for the eviction.  It is quite common for tenants to make applications at the last minute and for the application to suspend to be dealt with by the court the day before the date fixed for the eviction.  If the application fails however the eviction will proceed as normal.