My assured shorthold tenant is in rental arrears but refuses to leave my property, what can I do?

In any situation where a landlord wishes to regain possession of his or her property, they must follow the possession procedures outlined in the Housing Act 1988. Very simply, the possession procedure is as follows:

1. Serve a valid notice on your tenant asking them to vacate the property.
2. If your tenant does not leave voluntarily upon expiry of the notice, commence Court proceedings to obtain an Order for Possession.
3. If your tenant does not leave following on or before the date specified in the Order for Possession, you must obtain a Warrant for Possession which will enable a bailiff to evict your tenant if necessary.

It is a criminal offence to evict your tenant without following the steps above.

The two most common procedures for landlords wishing to regain possession of their property are outlined under Section 8 and Section 21 of the Housing Act 1988. In cases of rental arrears, Section 8 is usually the quickest and most effective procedure.

Landlords often make the mistake of serving a simple letter on their tenants asking that they leave. This is not a valid Notice. A Section 8 Notice must match the prescribed format set out in the Housing Act 1988.

The Notice must be served on your tenant affording them at least two weeks to vacate the property. The length of notice depends on the ground relied upon and can be as long as two months. Your Notice will not be valid if you do not give your tenant the corresponding length of notice for the ground relied upon.

The 17 grounds for eviction under Section 8 are set out in Schedule 2 of the Housing Act 1988. You must cite at least one of these grounds in your Notice, explaining why the ground is being relied upon. Again, failure to cite at least one ground and explain why it is being relied upon will mean your Notice is invalid.

Grounds 1 to 8 are known as ‘mandatory’ grounds. This means that if a landlord can prove to the Court that one of these grounds applies, the Court must grant a possession order.

Grounds 9 to 17 are ‘discretionary’. This means that even if a landlord can prove that a ground applies, the Court can exercise its discretion as to whether or not a possession order will be granted. In other words, the Court will listen to your tenant’s side of the story and may decide, based on their arguments, not to grant possession.

It is therefore common for landlords to rely on a mandatory ground if possible in order to avoid the wasted expense of commencing unsuccessful possession proceedings.

The appropriate mandatory ground for rental arrears is Ground 8. To rely on this ground, the landlord must prove that the tenant is:

1. At least eight weeks in rental arrears if rent is due weekly
2. At least two months in rental arrears if rent is due monthly; or
3. More than three months in rental arrears if rent is due quarterly or annually.

The tenant must be at these levels of arrears both on the date the Section 8 Notice is served and on the date of the Court hearing for possession. In cases where a tenant is in significant rental arrears with no intention or means to pay, this ground should be used.

In cases where tenants are in some rental arrears but not enough for Ground 8 to apply or may pay off some arrears between the dates of the Notice and the Court hearing, a landlord can rely on Ground 10. This ground requires that a tenant is in some rental arrears both at the time possession proceedings are commenced and was in arrears at the date of service of the Section 8 Notice.

Clearly, this is a far easier ground for landlords to satisfy. However, Ground 10 is a discretionary ground. If your tenant can demonstrate to the Court a valid excuse for the rental arrears, the Court may decide not to award a landlord with possession.

Ground 11 is another option. This ground does not require the tenant to be in arrears at all when possession proceedings are commenced, only that the tenant has persistently delayed in paying rent throughout the tenancy. Again, this ground is discretionary.

Please note: If it is only feasible for a landlord to rely on the discretionary grounds under Section 8, it is often more sensible to use the Section 21 procedure which we will look at in a future blog.

If you are a landlord with a troublesome tenant and wish to discuss your options, please contact Jonathan Robson in our Dispute Resolution department on 0113 201 4900 or email jonathan.robson@emsleys.co.uk for more information on our fixed-fee residential possessions service.