I was contacted by a landlord recently who was trying to evict his tenant. He was obviously in serious problems as his tenant had put forward various defences which were going to make the case complex and time-consuming.
He ended by saying
Please don’t just tell me to see a Solicitor as I don’t have the money …
That is the story of many landlords who find themselves embroiled in expensive contested litigation. When if only they had taken a bit of advice at the start, the problems could have been avoided AND they would probably have obtained a possession order at the first hearing. Or (for accelerated procedure claims) without any hearing at all.
Here are the top mistakes that I see being made by landlords acting on their own.
1. Failing to protect the tenancy deposit or serve the prescribed information
This is the number one problem. I can’t tell you how many times I have been advising a landlord who then says “Oh, by the way, I protected the deposit a few months late, but that’s not a problem is it?”
The answer is, yes it is a problem, a big problem, and you have no chance of using the s21 eviction procedure until you have refunded the deposit money (I have a kit which explains exactly what you need to do in this situation here).
If you have taken a deposit – BEFORE DOING ANYTHING you need to check
- That the deposit was properly protected in a scheme within the 30 day time period
- That the ‘prescribed information’ (ALL the prescribed information) was served, also within the time period
- If the deposit was paid by someone other than the tenants – that the prescribed information was served on them too
For more information read my post here.
2. Not being able to prove service of your notice
Probably the chief reason will be that you served your notice by ordinary post and the tenant says he never got it. How can you prove he did? You can’t. So you will lose your case AND maybe have to pay your tenants costs.
NEVER serve notices by ordinary post. See my post here on this.
3. Serving the wrong notice or making mistakes when preparing the notice
Landlords have some excuse for making mistakes here as there are quite a few different notices that can be served.
Some, the section 21 and section 8 notices, have changed over the past few years, several times, to reflect changes in the legislation – so you need to be VERY careful about downloading free notices from the internet.
Other mistakes can include getting the names or even the address of the property wrong, leaving out parts of a ‘prescribed form’ and getting the notice period wrong.
Judges tend to be very hot on landlords getting their paperwork right. They take the view (quite rightly) that depriving someone of their home is a very serious matter and they are not prepared to do it if landlords have failed to comply properly with the rules.
4. Using a discretionary ground for possession
This is not exactly a mistake, but it will often result in problems and long drawn out contested cases.
I talked about mandatory and discretionary grounds here. The main thing to realise is
- With a discretionary ground, it’s up to the Judge whether he makes a possession order or not. He may decide, in his discretion, that it’s not appropriate.
- However, if you use a mandatory ground and get it right – he can’t do that.
Landlords often use discretionary grounds because they see that there is just a two week notice period for a section 8 notice, whereas for section 21 there is a 2 months notice period (or longer if the fixed term has not ended).
However, if you take into account the delays that can (and probably will) occur with tenants filing defences to claims based on a discretionary ground (as is their right) and all the procedure leading up to a contested hearing – it is usually MUCH quicker to use section 21. Even with the longer notice period.
5. Not understanding the law or procedure
People who know nothing about the law or court proceedings often have a completely false idea of how they work and what the pitfalls are. Or how long they can take and how expensive they can become if things go wrong.
They also often have an exaggerated idea of the urgency of their case.
“I can’t possibly wait six months to get my property back” landlords have said to me in the past. “It’s imperative that I get back in within three weeks” (or whatever).
Well, the Judge isn’t going to see it like that. He has much more urgent cases on his list.
He may be sympathetic towards you on a personal level, for example, if you are homeless yourself because you need to move back in, but he’s not going to allow this to affect his decision if you’ve got the procedure wrong. He’s not allowed to do that.
And if you try to evict without going through the courts, your tenant can bring a claim for compensation and maybe an injunction to get back in again.
If you are going to act in person you need to know what you are doing. Gung ho applications are frequently fatal. And therefore expensive. My Landlord Law Eviction Guide can help for straightforward claims.
However, if you’re not prepared to take the time to learn how to do it properly, then you will have to use a solicitor. Or risk making such a mess of the case that it will cost a fortune to sort out. Like my correspondent from the start of this post.
Not everyone makes a mistake and many landlords DO, fortuitously, succeed in their claim, even though they haven’t really got a clue what they are doing. But do you want to risk it?