Find out how a landlord can evict a tenant who routinely fails to pay the rent or has run up large rent arrears.
If a tenant repeatedly defaults on rent and doesn’t attempt to communicate with you or resolve the issue, you have the right under the Housing Act 1988 to take action and regain possession of your property.
It’s always advisable to talk to your tenants about creating a repayment plan or see if there’s anything you can do to help them make timely payments. However, this might not always be possible.
If eviction seems like the only solution, this guide will walk you through the process step by step. Here’s what you’ll find out:
- Is eviction the right option?
- The eviction process
- 4 ways to evict a tenant for rent arrears
- What happens when the eviction notice period elapses?
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Is eviction the right option?
When a tenant falls behind on rent, the first step is always to have a conversation with them. This helps to understand the situation and explore possible solutions.
Everyone can face financial difficulties at times, and it’s often wiser for a landlord to support a good tenant rather than resorting to eviction the first time they struggle to pay the full rent on time.
This article, however, focuses not on such scenarios but instead serves as a guide for landlords who, after careful thought, have concluded that they must evict a tenant due to rent arrears.
The eviction process
Most tenancies end by mutual consent: the landlord and the tenant agree on a move-out date, and how to sort out the last rental payment, and both go their separate ways.
If this hasn’t been possible, there’s a three-stage process to regain possession of the property.
- Serve a valid notice and wait for it to expire
- Apply to court for a possession order
- Apply to court for a warrant of possession
4 ways to evict a tenant for rent arrears
There are four main routes to repossessing a rental property when a tenant has had issues paying the rent on time.
Let’s go through what these mean and when to use each.
Section 21 for rent arrears
It’s often sensible to serve a Section 21 notice, and you can use OpenRent’s easy notice-serving tool to make sure that it has been correctly served.
It’s worth bearing in mind though that you can only serve a Section 21 if the notice is due to expire after the fixed term of the tenancy has expired or in conjunction with a break clause.
Section 21 is a good move because you don’t have to prove that the tenant has fallen behind on the rent. In fact, the tenant doesn’t have to have done anything ‘wrong’ for you to serve a valid Section 21 notice. For this reason, evictions via this route are sometimes called ‘no fault evictions’.
When using a Section 21 notice, the rent arrears are of no legal importance. All that matters is that you are the landlord, and wish to repossess the property outside of a fixed term. The Housing Act (1988) allows you to do this through the service of the Section 21 eviction notice.
You can then subsequently pursue the rent arrears separately in the county court if needed.
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Section 8: Grounds for rent arrears
Section 8 notices can be served within the fixed term. This is very turbulent for the tenant, so the law requires a good reason, called a ground.
There are 17 possible grounds to serve a Section 8 notice. Rent arrears feature in three grounds. When serving a Section 8 eviction notice, you will need to say on what grounds you are serving the notice and be able to prove that the grounds’ conditions are met.
Let’s go through the three grounds and their criteria.
This is the ground to use if the tenant is very far behind on the rent. You can use it if the tenant is at least:
- 8 weeks’ rent in arrears for weekly/fortnightly tenancies
- 2 months’ rent in arrears for monthly tenancies
- 3 months’ rent in arrears for quarterly/yearly tenancies
The tenant needs to be in arrears on the date the notice is served and the day that the case is heard.
Ground 8 is a mandatory ground. This means that if the conditions are met, then the court giving the hearing must give possession of the property to the landlord.
Ground 8 is the only mandatory ground of the three rent arrears grounds. The other two, grounds 10 and 11, are discretionary. This means that if the conditions are met, the court will decide whether possession should be given to the landlord.
Therefore, if this ground exists, it’s the best one a landlord can use to achieve a possession order.
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This ground can be used when any amount of rent is due. Like ground 8, the arrears must stand on the date of service and on the day of the hearing.
Remember that this is a discretionary ground. If you serve it when a tenant is behind on the rent for the first time and only owes £10, then you are probably going to lose your hearing. This ground is more likely to be used by landlords asking the judge to make a money order as opposed to an order for possession.
If a money order is made, then the judge orders the rent arrears to be paid as opposed to ordering that they vacate the property. More on this later.
This one is slightly different. It can be used when a tenant is regularly failing to pay the rent. Unlike grounds 8 and 10, tenants do not have to be in arrears on the date of service or the date of hearing (although, of course, they may well be).
This makes it a useful tool for landlords, as it prevents tenants from paying off some of their rent arrears a few days before the hearing just to avoid the eviction process progressing.
Should I use Section 21 or Section 8 for rent arrears? Can I serve both at the same time?
Yes, you can serve both simultaneously. If the fixed term has expired allowing you to serve a Section 21, then you can serve both types of notice at once.
This is often a good idea because, as we’ve mentioned, Section 21 notices are easier to proceed with while these Section 8 notices have a shorter notice period.
The Section 8 grounds listed above have a notice period of 2 weeks. Section 21 notices, by comparison, have a notice period of 2 months.
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What happens when the eviction notice period elapses?
Ideally, upon receiving the notice, you and your tenants will have agreed on an acceptable date within the notice period for them to vacate the property and pay the rent arrears. By the time the notice period elapses, they will have moved out and paid up.
If this hasn’t been possible, then the day after the notice period expires, you will need to take action. The course of action depends on:
- whether you are using a Section 8 or Section 21 eviction notice
- whether you are claiming just possession, or also your rent arrears
If your tenant hasn’t vacated the property, the next step is seeking to gain a possession order from the courts.