Tenant Eviction Do it Right or Pay the Price!
In previous months we have looked at what you should do prior to the start of a tenancy to minimize the risk of that tenancy going wrong. Whilst due diligence will doubtless reduce the risk of problems later on, it is still the case that tenancies can deteriorate due to a change in circumstances of your tenant or other circumstances beyond your control or, as I have experienced, often beyond even your imagination!
Setting to one side the Drug Factory, Brothel, Sublet or other purpose your tenant may use your property for, the most likely issue that you will face is the non-payment of rent. It may be the case that your tenant has been made redundant, their housing benefit claim has been stopped or alternatively they may withhold payment due to a dispute over repairs at the property.
At an appropriate level of arrears, a judge does not have the discretion to decline a landlord’s request for possession of the property – although don’t think this means a tenant cannot defend such an action against them. Arguably more difficult to deal with than rent arrears, areaspects of anti-social behaviour. These are covered by Ground 14 of the legislation and fall into the
category of “discretionary”. This means that it is for the judge to decide whether the situation is serious enough for the tenant to be ordered to leave the property.
It is imperative to promote and maintain as positive a relationship with your tenants as is possible. By doing this your tenant is more likely to remain communicative during any difficulties. This will maximize your chances of securing a successful resolution.
In the event that rent arrears reach two months or more, then you are entitled to serve a Section 8 Notice. This notice gives the tenant fourteen days to pay the arrears of rent, failing which you will be entitled to make an application to the County Court for both possession of your property and a money judgement for the arrears of rent owed to you. Around half of the notices served result in a payment of rent and the start of the tenancy getting back on track so don’t be too despondent.
Take comfort from the fact that there are very few serial non-payers and therefore your non-paying tenant is likely to be enduring some short-term cash flow issues which you can hopefully resolve with them.
For those landlords obliged to follow the court possession route you may well be surprised at how long the process can take. Courts are busy and it is not unusual for a landlord to be given a hearing date six or more weeks from the date that you make the application. This can be a challenging time, especially if the tenant is not paying but yet you still have mortgage obligations to meet.
Once at the hearing the judge will normally grant a possession order, which requires the tenant to yield the property to the Landlord within fourteen days of that hearing. Bear in mind the Judge has latitude to increase this time period up to 42 days.
In a small number of cases, the tenant does not vacate the premises on the date required by the court; the landlord is then obliged to apply to the court for a Warrant of Possession where a court bailiff will remove the tenant from the property. This process can also be protracted and it is not unusual for Bailiff appointments to be six weeks after the date
from which the court required the tenant to leave. Despite the obvious financial pain of non-payment and the frustrating delays of the system, you must not be tempted to try and circumvent the system.
The Protection from Eviction Act is quite clear that a failure to comply with the legislation could result in a criminal prosecution against the landlord and potentially a heavy fine or even imprisonment.
Threatening or harassing the tenant, cutting off gas or electricity supplies, changing locks and the like will all place the landlord the wrong side of the law. Like it or not, even during periods of non-payment of rent, your tenant still has significant rights.
A very recent case of a landlord changing the locks to a property in an attempt to get his tenants to leave resulted in a 56-day suspended prison sentence. Looking at the fines that can be ordered, there was a case back in 2009 where a landlord asked his tenant to temporarily move out whilst he undertook some repair works. The tenant agreed but once the repairs had been completed the landlord refused to allow him back into the property. The tenant made a claim against the landlord who was ultimately ordered to pay an eye watering £81,000.
You may feel that the timescale and process for ending a tenancy which has deteriorated is far too long; however there is no substitute for following the correct procedure. Shortcuts are likely to be extremely expensive.