Seeking Possession, Eviction and Notice

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SEEKING POSSESSION, NOTICE AND EVICTION

 

 

 

 

The landlord has the right to seek possession at the end of the fixed term or after six months from the start of the tenancy, whichever is the longest. If the tenancy has a fixed term of less than six months, the landlord cannot evict the tenant within the first six months of the tenancy, unless the landlord has a reason (ground) for doing so.

During any fixed term of either an assured or an assured shorthold tenancy, the tenant can only be evicted if the landlord has a reason, or ground, laid down by statute for evicting her/him (unless the tenancy agreement contains a valid break clause.) The landlord will have to go to court to obtain a possession order to evict the tenant. The tenant cannot be legally evicted in any other way, for example, the special assured shorthold procedure cannot be used during a fixed term.

 

During the fixed term, the landlord can use a ground for possession in order to evict the tenant if:-

• the tenancy agreement has a term allowing early termination, or 'forfeiture', on the grounds listed below, AND

 

• (for some grounds for possession) the landlord has given notice to the tenant, before the tenancy began, that s/he might use that ground for possession; AND

 

• the landlord serves the tenant with the correct notice that s/he is starting the possession proceedings. This is called a notice seeking possession. Notice periods vary depending on the ground for possession used and can be shortened by the court in some cases; AND

 

• s/he applies to court, persuades the court that the ground applies and, (for some grounds), that it is reasonable to give possession, and is granted a possession order. If the tenant does not leave, the landlord will have to use the court bailiffs.

During any fixed term the only grounds which can be used to evict a tenant are:-

Ground 2 there is a mortgage on the property, which started before the tenancy started, and the lender wants to sell the property (normally to pay off mortgage arrears), and the landlord notified the tenant in writing before the tenancy started that s/he might seek possession on this ground (though the court can waive this requirement)

Ground 8 the tenant's rent is more than two months or eight weeks in arrears, both when the landlord gave notice seeking possession and at the date of the court hearing

Ground 10 the tenant is in rent arrears, both when the landlord serves notice seeking possession and when s/he begins court proceedings

Ground 11 the tenant has persistently delayed paying rent

Ground 12 the tenant has broken one or more terms of the tenancy agreement, apart from not paying rent

Ground 13 the condition of the property has got worse because of damage or neglect by the tenant or any other person living with the tenant

Ground 14 the tenant, or someone living in or visiting the property, has caused a nuisance or annoyance or has been convicted of using her/his home, or allowing it to be used, for immoral or illegal purposes

Ground 15 the tenant, or someone living with the tenant, is alleged to have damaged the landlord's furniture

Ground 17 (from 28 February 1997 only) the tenant induced the landlord to grant her/him the tenancy by making a false statement.

Notice At least two months' notice must be given for ground 2. At least two weeks' notice must be given for grounds 8, 10-13, 15 and 17. In the case of ground 14, possession proceedings can start as soon as notice has been served.

 

At the end of six months, or at the end of the initial fixed-term, whichever is the longer, the landlord can automatically get a court order to evict the tenant and does not need any grounds for doing so.

 

A tenancy agreement may contain a break clause. This is a clause which allows a landlord to end a fixed term without a ground for possession, simply by using the break clause.

 

The landlord must go through the correct procedure in applying to court, proving the ground, obtaining a court order and then using the court bailiffs to evict the tenant. If s/he does not do this, s/he may be guilty of illegal eviction. If the landlord tries to frighten a tenant into leaving her/his home, or the landlord evicts the tenant, the landlord is committing a criminal offence and can be prosecuted. The tenant may also be able to get her/his home back.

 

 

A landlord or her/his agent can be convicted of the criminal offence of harassment if s/he:-

• behaves in a way intended to interfere with the peace or comfort of the residential occupier or members of her/his family; or

 

• persistently withholds or withdraws services which the residential occupier reasonably requires to occupy the premises as her/his home; and

 

• s/he knows, or has reasonable cause to believe, that what s/he is doing is likely to make the residential occupier either leave the premises or not use part of the premises or services s/he is entitled to use or not try to exercise her/his right to use them.

The tenant may be able to get some financial compensation for any acts of harassment s/he has suffered. If the landlord is successfully prosecuted for harassment, s/he will automatically be in breach of the implied term of allowing the tenant quiet enjoyment of her/his home. The landlord may also have broken other parts of the contract.

 

A landlord (or her/his agent) will commit the criminal offence of illegal eviction if s/he:-

• tries to evict a residential occupier from all or part of her/his home without following the required legal procedure; or

 

• behaves in a way intended to interfere with the peace or comfort of a residential occupier or members of her/his household and, as a result, the residential occupier gives up her/his home; or

 

• persistently withholds or withdraws services which a residential occupier reasonably requires to occupy the premises as her/his home and, as a result, s/he gives up her/his home.

A residential occupier who has been illegally evicted may:-

• try to be reinstated in her/his home; or

 

• claim damages. These can be general damages because of the landlord s breach of contract or damages based on any injury or loss of damage to her/his property; or statutory damages because of her/his illegal eviction.

Illegal eviction is a criminal offence under the Protection from Eviction Act 1977 (as amended by the Housing Act 1988), punishable by up to two years imprisonment and/or an unlimited fine.

 

 

 

NOTICE

 

 

Notice for the assured shorthold procedure

 

 

The assured shorthold procedure must start with the landlord giving the tenant two months' notice in writing. More than two months' notice will be needed if the tenancy is quarterly or yearly, in other words if the rent is paid every quarter or every year. For a quarterly tenancy, three months' notice must be given; for a yearly tenancy, six months' notice must be given. However, these types of tenancy are relatively rare.

 

Although the notice, known as a section 21 notice, does not have to be in any particular form, there are certain rules the landlord must follow in order for the notice to be valid.

 

The notice can be given at any time during the fixed term, including at the beginning. It cannot be given before the date on which the tenancy starts. The notice must not expire before the end of the fixed term. If the tenant has, for example, a six month fixed-term agreement and the landlord wants the tenant to leave at the end of the fixed term, the notice must be given by the end of the fourth month of the tenancy.

 

 

A fixed term assured or assured shorthold tenancy agreement cannot be terminated early by the tenant unless the agreement allows this. A tenant who wants to leave the accommodation before the end of the fixed term should therefore check their agreement carefully. If the tenancy does not allow this and the landlord does not agree to an early termination, the tenant will remain bound by the agreement and liable for the rent for the whole period. However, if the tenant left and the landlord sued the tenant for rent for the remainder of the period, the landlord would have to show that s/he tried to mitigate any loss by trying to re-let the accommodation.

 

Does the assured shorthold tenant have to move out when a notice is given

 

An assured shorthold tenant does not have to leave even when the correct notice is given. S/he is entitled to remain in the property until the landlord obtains a court order to evict her/him and, if the tenant still does not want to go, until a court bailiff evicts her/him. However, if the tenant has another address to which s/he can move, s/he may decide to move out when notice is given. Such a tenant should also take into account the possibility of incurring legal costs if s/he decides to stay.

 

If a tenant does not have other property to move to and/or is likely to qualify for help under homelessness legislation, s/he should not move out until the local authority has confirmed in writing that it will rehouse her/him, or until s/he is sure that s/he has no defence to the possession proceedings. This is because there is a risk of being found intentionally homeless if s/he moves out earlier.

 

Notice to quit

 

The tenancy agreement may contain a term specifying the amount of notice the tenant must give the landlord if s/he wants to leave. If the tenancy is a fixed term tenancy, and the tenant is moving out on the exact day on which the fixed term expires, s/he is not required to give any notice.

A fixed term assured or assured shorthold tenancy agreement cannot be terminated early by the tenant unless the agreement allows this. A tenant who wants to leave the accommodation before the end of the fixed term should therefore check their agreement carefully. If the tenancy does not allow this and the landlord does not agree to an early termination, the tenant will remain bound by the agreement and liable for the rent for the whole period. However, if the tenant left and the landlord sued the tenant for rent for the remainder of the period, the landlord would have to show that s/he tried to mitigate any loss by trying to re-let the accommodation.

 

If the tenant has a fixed term assured or assured shorthold tenancy and wishes to move out on the day the agreement runs out, then s/he is not required to give notice to her/his landlord. This is because the contract between the landlord and tenant ends when the fixed term ends, and so the tenant no longer has any contractual obligation to give notice, or pay rent, to the landlord. If the tenant stays beyond the fixed term, a periodic tenancy begins.