My tenant won't leave - what can I do?
Chris Hogan, 9th May 2016, Landlords
Most tenants will leave a property once the tenancy is up but occasionally your get the obstinant ones who simply don't go. What can you do and, perhaps more importantly, what mustn't you do?
Here's our quick guide to the key issues, the do's and don'ts, for England and Wales. It's not a legal document and you must seek up-to-date, expert legal opinion before taking any action.
The soft touch
All cases will be different - another reason why legal advice is crucial. But if the tenancy has ended, a leaving date was agreed, and the tenant simply keeps giving excuses as to why they won't move out, negotiation will be a lot cheaper than getting out the big guns.
Try to talk to the tenant and find out why they are dragging their heels and see if you can get an agreement that the tenant will stick to.
The re-housing issue
An increasing problem in the UK is that local authorities are believed to be advising tenants who want to be rehoused that they should refuse to leave until they are properly and legally evicted.
If they leave before then, they will be declared "voluntarily homeless" and the local authority will no longer be obliged to re-house them. If this turns out to be the issue you have no recourse but to start the eviction process.
What not to do
The overriding legal principle is that a tenant has the right to stay in your property until you are given a possession order by the court, even if the tenancy agreement has expired and they aren't paying rent!
So it's important that you don't:
- Harass the tenant for rent
- Enter the property without prior agreement from the tenant
- Change the locks
- Turn off any utilities
- Remove tenants' possessions
- Makes threats of any kind
If the police are called and decide that you are harassing the tenants, it is a criminal offence and you can be arrested and charged.
How to evict?
Assuming your tenant is on an Assured Shorthold Tenancy (AST) you can issue either a Section 21 or a Section 8 notice to the tenant.
A Section 8 notice is used when the tenant has breached the terms of the tenancy agreement. It can be issued while a tenancy agreement is in force and also if there is no AST. It can be quicker than a Section 21 but you have to present evidence of the dispute in court and there's a chance you'll lose - another reason for consulting an experienced property lawyer.
Section 21 notice
This is usually slower than a Section 8 but the outcome is more certain - it's often called the "no fault" notice, as you don't have to prove the tenant has breached the contract.
You have to wait until the tenancy is about to expire - you can't use it to evict tenants in the middle of a tenancy - so it can easily take thee months to eviction.
Gaining possession
Assuming your Section 21 or 8 notice progresses smoothly but the tenant is still in situ, the next step is to apply for a possession order through the courts - there will be a hearing and the court decides whether to issue the order.
If you've used a Section 21 you can apply for the Accelerated Possession Procedure (APP) where there isn't a hearing.
Tenants can contest orders but assuming they don't, or are unsuccessful, the court will order the tenant to leave within 14 to 42 days.
Actually gaining possession
The final hurdle is to gain physical possession of your property - you are not allowed to forcibly evict tenants yourself.
The options are to use bailiffs, who the court will arrange, or sheriffs (in some circumstances) which you can arrange. If there are problems then the bailiffs or sheriffs can call the police to enforce your possession order.
Legal advice is key
Even from this very quick overview it's clear why legal advice must be taken - there are so many unknowns and things that can go wrong and the law seems tilted quite far in the direction of the tenant right now.
Many insurance policies come with a legal advice helpline and liability cover for legals costs and compensation awarded against you. If you think it might be a good idea, email or phone our team to see if you can set it up - 01608 647640 or info@insuremyletproperty.co.uk.
