How to Evict a Tenant: Step Two: Gain a Possession Order
This is a guide on how landlords can evict tenants who routinely fail to pay the rent or have run up large rent arrears. This is a very serious thing to do, but it’s also a clear and well-trodden process.
Lots of people want you to think that evicting a tenant is very complicated, so they can charge you money to do it for you.
It’s not very complicated. There is a lot of support and help for landlords (we will link you to it here) and all the forms you’ll need to fill in have been standardised and digitised by the Government.
This guide will show you, step by step, what to do if you need to evict a tenant for rent arrears.
But First: Make Sure Eviction Is the Right Option
When a tenant falls behind on the rent, the first thing to do is always to talk to them. This way you can find out why it has happened and what can be done.
Everyone can run into financial difficulties, and a landlord is usually better sticking with and supporting a good tenant than evicting them the first time they don’t manage to pay the full rent on time.
This article is not about these situations. This is a guide for landlords who have, after proper consideration, decided they need to evict their tenant for rent arrears. Here’s how you can do it.
General Outline of the Eviction Process
Most tenancies end by mutual consent: the landlord and the tenant agree a move-out date, how to sort out the last rental payment, and both go their separate ways.
If this hasn’t been possible, then there’s a three stage process to regaining possession of the property. This guide explains the second stage: applying to court for a possession order.
Four 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.
- Section 21 Eviction Notice
- Section 8 Eviction Notice
- Ground 8
- Ground 10
- Ground 11
Let’s go through what these mean and when to use each.
Section 21 for Rent Arrears
It is often sensible to serve a Section 21 notice. You can only do this if the notice is due to expire after the fixed term of the tenancy has expired. The notice period is 2 months.
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.
Section 8: Grounds for Rent Arrears
Unlike Section 21, 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 such 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.
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.
What Happens When the Eviction Notice Period Elapses?
Ideally, upon receiving the notice, you and your tenants will have agreed 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 has not 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
Let’s go through each of these routes now.
Recovering Possession and Rent After Section 8 Notice Expires
If you are using Section 8 to regain possession, you must apply to court, asking for them to do both or either of:
- Order your tenant to leave the property, giving you possession. This is called a possession order.
- Order your tenant to pay off their rent arrears, possibly along with the court fees and even your legal costs. This is called a money order.
To Repossess Property
To regain possession of your property, you will need to submit these forms to the court:
- N5 Claim Form for Possession of Property – this is where you say which grounds you are using
- N119 Particulars of Claim for Possession – this is where you give additional information about the tenancy
- N215 Certificate of Service – this is your proof that you served notice correctly
There is a cost associated with pursuing possession orders. Claiming possession will cost you £325 if you use the Government’s online portal.
To Recover Rent Owed in Arrears
The judge will probably make a ruling that the tenant is responsible for any rent owed (and even your court costs). If you’ve served a Section 8, then to collect this money from the tenant, you will have to apply to the county court.
You do this with the N1 Claim Form. You can reference the ruling the judge made at your Section 8 repossession hearing in this form.
Recovering Possession and Rent After Section 21 Notice Expires
To Repossess Property
The fastest way to obtain a possession order after a Section 21 notice expires is through an Accelerated Possession Order. You can ask a court to issue such an order if your tenants have not vacated the property by the end of your notice period.
Accelerated Possession Orders do not require a court hearing, so can happen much faster. The court effectively skips straight to the possession order.
You can start your Accelerated Possession Order with a N5b form. It costs £355.
The court will send your tenants the application, and then they will have 2 weeks to challenge it.
Beware! These can only be used in cases where the landlord is not also asking for a money order. You’re free to start an Accelerated Possession Order and then request a money order after the property has been vacated.
To do that, see the next section.
To Recover Rent Owed in Arrears
If you’ve used the accelerated Section 21 Possession Order, you can chase up the rent arrears owed to you through the Government’s Money Claim Online service.
Wait – can’t I claim Possession and Arrears of Rent at the same time?
Yes. You can claim both possession and arrears of rent by starting the Standard Possession Orders process instead of the Accelerated Possession Order process (‘standard’ being the opposite of ‘accelerated’ here).
You can begin that process here. It costs £325.
Which Court Do I Apply to?
For both Section 8 and Section 21 notices, you apply to the nearest county court to the property that deals with housing possession. You can easily find that out by entering the postcode here.
How Do I Prove My Tenant Is in Rent Arrears? What Counts as Evidence?
The best and most obvious way to prove rent arrears is with a thorough, accurate, schedule of arrears.
This should detail all rental periods, rent due and rent paid since the start of the tenancy. Ideally, it would also include the method of payment and any payer details (account number, whether by direct debit, etc.)
You should also include all the correspondence you’ve had on the issue. This might include rent due notices, payment prompts and reminders, or agreements you’ve made about/leniencies given for due rent.
The more warnings you have given your tenant that they owe rent, the harder it will be for them to argue against your claim – and the more likely it will have been that they would have paid!