So, you want to evict your tenant?
How do you start? Well, first you need to answer five key questions. Your answers will determine what type of eviction proceedings, if any, you are able to bring.
1. What soft of tenancy does your tenant have?
Most tenancies are assured shorthold tenancies. If your tenant has an AST this is good, as there are more options available to you. On the other hand if your tenant has a protected tenancy under the Rent Act, you will have problems.
2. What is the reason you want to evict?
The most common is that the tenant is failing to pay rent. In most cases you will be able to get a possession order on this ground, even for protected tenancies. The courts will not allow a tenant to remain in a property paying no rent. Not indefinitely anyway.
If you want to evict because of some other problem behaviour on the part of the tenant, or because you need the property back for your own use, you may have difficulties though.
Unless the tenancy is an assured shorthold one, in which case you will have the advantage of the section 21 ground for possession.
3. Does your tenant have any potential defence to eviction?
If you have a well founded claim under section 21, your tenant will almost certainly have no defence available to him. This is why claims on this basis are usually preferable to any other, if they are available.
Otherwise, you need to consider carefully the question of a potential defence before issuing proceedings. For example it is unwise to issue proceedings for possession based on rent arrears if the tenant has been complaining for months about a malfunctioning boiler or rotting window frames.
If you issue proceedings in these circumstances, you will probably be faced with a counterclaim for damages for breach of your statutory repairing covenants and you could end up losing the claim to your tenant.
4. Is it urgent?
Although the section 21 ground for possession is the best, you may need to wait until after the fixed term has ended before you can use it. If the tenant has stopped paying rent early on in a 12 month contract, you will not be able to wait that long. So you will need to issue proceedings using the standard possession procedure based on rent arrears.
Bear in mind though that sometimes issuing proceedings now under a discretionary ground can actually take longer to resolve (ie if it is defended) than waiting and using section 21. So you may be better off waiting, even if you think the case is urgent.
5. How much money do you have to spend on legal fees?
There is always some cost to bringing proceedings, even if it is just the court fee (landlords are most unlikely to be entitled to fee exemptions) and solicitors fees can be expensive.
Solicitors fees are going to be considerably cheaper however if you are using one of the mandatory grounds for possession – typically this is either serious rent arrears or section 21. For claims on this basis most good firms will offer a fixed fee.
Or you could consider using one of our do it yourself kits.
However if you want to claim possession based on the antisocial behaviour of the tenants, which is of necessity going to be under one of the discretionary grounds, then if the tenants put in a defence you could be faced with a long drawn out and expensive claim.
This is why most landlords will wait to evict tenants under the section 21 ground for this type of claim.
If you are uncertain what course of action to take, the Which Possession Proceedings service on Landlord Law may be able to help.
