You want your tenant to leave but you don’t have a written tenancy agreement. Will you be stuck with them forever?
Lets take a look at the options
Are you SURE you don’t have a tenancy agreement?
Sometimes people think they don’t have a tenancy agreement when actually they do. I am thinking here of when a tenancy ‘runs on’ as a periodic tenancy after the end of the fixed term.
In this situation the law provides that the tenant has a new tenancy, a new periodic tenancy, but that the terms of the preceding tenancy agreement will still apply.
So in this situation you WILL have a tenancy agreement.
However you may really not have a tenancy agreement – maybe you never had one in the first place and the tenant just went in on a handshake and a promise to pay rent. Or maybe you have lost it.
What are your options for evicting then?
Section 21 eviction claims
The most important question is – can you still use the section 21 procedure?
The answer (you will be pleased to hear, unless of course you are a tenant) is yes you can. However you can’t use the special (so called) ‘accelerated procedure’.
This is because the accelerated procedure is paper based. The Judge makes the decision (in most cases) without a hearing based on the paperwork you provide.
So if you don’t have a written tenancy agreement you can’t use that procedure for evicting your tenant. You will need to use the standard procedure where you have a hearing. You will then have to explain to the Judge why there is no tenancy agreement in this case.
However you can use the standard procedure for s21 claims and my DIY Eviction Kit explains how.
Other types of proceedings for evicting teannts
As the accelerated procedure is the only type of possession procedure where you have GOT to have a written tenancy agreement, then it follows that for other types of claim, yes you can bring them without a written agreement.
The main problem with evicting without having a written tenancy agreement, is proving the facts of your case.
So if (for example) your tenant is claiming that they first went in before 27 February 1997 (at which time you would need to have served a s20 notice on your tenant to create an AST) and you are claiming that they first went in after that date – it is going to be more difficult without the paperwork to prove it.
That doesn’t mean to say that you can’t prove it – it will just be more difficult.
It will also be difficult to bring a claim based on breach of the terms of the tenancy. As you won’t have a written document setting out what those terms are.
However if your claim is based on rent arrears (as the majority of eviction cases are) you should, in most cases, be all right.
In short, the only real problem will be that you can’t use the accelerated procedure for section 21 claims.
So far as any other type of claim is concerned, not having a tenancy agreement will just make things more difficult for you. Depending on they type of claim you are bringing.
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