How to Evict a Tenant: Step One: Serve Notice
Here we’ll tell you exactly how to serve valid notice on a tenant using Section 21 and Section 8 notices.
The following all applies to tenancies created after 1st October 2015 in England only.
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 first stage: serving notice.
Part One: this post
Part Two: how to gain a possession order
Part Three: how to gain a warrant for possession
Beginning the Eviction Process
Landlords can begin the eviction process by serving an eviction notice. The notice itself is a standardised letter that can be downloaded from the GOV.UK site. ‘Serving’ just means delivering it to them according to some rules, which we’ll explain below.
There are two different kinds of eviction notice that refer to different parts of the Housing Act (1988): Section 21 and Section 8, and they set you off on two slightly different eviction pathways.
Serving either notice will be usually be enough to prompt tenants to leave the property without further action.
It’s very important, however, that you follow these rules while serving notice. If you breach them, you invalidate your notice. That means that, if your tenant doesn’t leave, then you will have to serve the notice again before you will be able to take the next step: applying to court for a possession order. This could add months to the tenancy.
It isn’t rocket science though, and the average landlord is more than capable of serving an eviction notice correctly.
Conditions for Serving a Valid Section 21 Notice:
To serve a Section 21 notice, you must complete form 6a and then serve it according to the following rules.
Before you do this, you must have:
- Given the tenant a copy of an EPC (with a rating of E or higher if tenancy started or was renewed after 1st April 2018)
- a valid gas safety certificate
- the How to Rent booklet at the start of the tenancy
- Protected any tenancy deposit within 30 days of receiving the money
- Served the prescribed information about how you protected the deposit within 30 days of receiving the money
- All local and national licensing: e.g. an HMO licence or a local Selective Licensing
- You must also be the landlord/their agent
There is also a possibility that a Section 21 notice served shortly after a tenant has reported a repair notice to the local council will be perceived as a retaliatory eviction. In this case, it is wise to follow any repair order the council gives, and wait a period before serving a Section 21 notice.
When Can I Serve a Section 21 Notice?
You can’t serve a Section 21:
- If it will expire before the tenancy’s fixed term ends
- If it will expire before the break clause
- In the first 4 months of the tenancy
The period for Section 21 notices is 2 months, after which the notice expires. If the tenant is still in the property, then you can apply to court.
Does My Notice Need to Expire at the End of a Rental Period?
It depends on whether you are within a fixed term or not (i.e. a ‘rolling’ periodic tenancy).
Within the Fixed Term
Since 1st October 2015, you don’t need to ‘time’ the notice to expire at the end of a rental period if you are within the fixed term.
You can serve notice due to expire on any day of the rental period, and if the tenant moves out on that day, they will simply owe the pro-rata amount for the number of days into the rental period they are.
Outside the Fixed Term
If you are serving notice on a day after the tenancy’s fixed term has expired, then it’s important to remember that the notice will always expire on the final day of a rental period, once two full rental periods have expired.
So for example, if you have a periodic tenancy with a monthly rental period running from the 22nd to the 21st of each month, then notice served on 15th January would expire on 21st March. This is because you need to give two full rental periods (in this case, the periods beginning 22nd Jan and 22nd Feb) and your notice period would expire once these had elapsed in full, i.e. on 21st March.
How Do I Serve a Section 21 Notice?
To serve the notice, you’ll need to fill out form 6a and then serve it to the tenant.
‘Serving’ the notice means making sure the tenant receives it. You’ll need to be able to prove that the tenant received your notice forms for your eviction to have a chance if it goes to court.
You can do that in the following ways.
This means literally handing the notice to the tenant, in an envelope, addressed to them at the property. It will be deemed to have been served on the day you did it, which is often preferable for landlords seeking speedy progression of the eviction.
You will need a witness to confirm that you delivered it. This means bringing someone along to witness you giving it to them. See below for more details.
Left at Address
Under the same conditions as above, the notice can be served by leaving it at the property, e.g. by posting it through the letterbox. In this case, the deemed date of service will be three days after it is delivered to the property.
Again, you will need a witness who could also provide evidence of this, e.g. photos of the delivery occurring at the property.
You can serve notice via recorded delivery, but it’s not recommended because if the envelope is returned undelivered, then you will not have served the notice at all.
If the tenant accepts the delivery, however, notice will be deemed to have bene served on the delivery day. This is more uncertainty than many landlords wish to face.
You could pay to use a professional service that serves legal notices, called a process server. They will serve the notice legally and before any deadlines you may instruct to them. They will also produce a proof of service that can be used in court if your service of the notice is called into question.
First Class Post
You can also serve notice by postal delivery. The deemed date of services for first class post is two days after the day it was posted, as long as that day is a working day. If the second day after posting isn’t working day, then notice will be deemed served on the next working day.
E.g. if you post on Friday, then two days later is a Sunday. But that’s not a working day, so the deemed date of service would be the Monday.
If notice is served by email, it will be deemed to become active on the same day it is sent as long as it is sent before 4.30pm on a working day. If it is not sent before 4.30pm, it will be deemed to be served on the next working day.
Who Can Be a Witness for Service of Notice?
Anyone can be a witness, but it’s best to choose someone that the court will believe. That means someone neutral, with little or no connection to the case. Your co-landlord would be the worst choice, moving through your spouse, family, friends and others with an interest in the tenant being evicted. Ideally, you would have a police officer or other local official, but this won’t usually be possible,
It is important that the witness will be able to appear at any future court hearing, so them being local to the court you would apply to is very sensible. If in doubt, you could ask a neighbour of yours or of the property.
Conditions for Serving a Valid Section 8 Notice
If you are serving a Section 8 notice, then you must fill out this form. You must then serve it to the tenant according to the same rules as above. In this Section 8 form, you will have to include the grounds on which you are serving the notice.
Section 8 notices have a notice period of either 2 weeks or months. Grounds with a period of 2 weeks are: 3, 4, 8, 10, 11, 12, 13, 15, 17.
Grounds with a period of 2 months are: 1, 2, 5, 6, 7, 9, 16.
The grounds are also split into mandatory and discretionary grounds.
‘Mandatory’ means that if the ground exists, then the court has to grant possession to the landlord. ‘Discretionary’ means that if the grounds exist, the judge will decide whether to grant possession or not.
Here’s our guide to evicting with a section 8 notice.
Mandatory Grounds for Section 8 Eviction
|Ground||Explanation||Key Legislative Excerpts||Notice Period|
|1||Landlord moving back into a property they previously lived in, to use as their principal home.||At some time before the beginning of the tenancy, the landlord who is seeking possession …occupied the dwelling-house as his only or principal home||2 months|
|2||Property being possessed and sold by mortgagee||The mortgagee requires possession of the dwelling-house for the purpose of disposing of it with vacant possession||2 months|
|3||Property was a holiday let and is going to be used as such again||A some time within the period of twelve months ending with the beginning of the tenancy, the dwelling-house was occupied under a right to occupy it for a holiday||2 weeks|
|4||Student accommodation being repossessed by educational institutions||A tenancy which is granted to a person who is pursuing, or intends to pursue, a course of study provided by a specified educational institution||2 weeks|
|5||Religious institutions’ property being repossessed for use by ministers||The dwelling-house is required for occupation by a minister of religion as such a residence||2 months|
|6||Major works on the property||Landlord intends to demolish or reconstruct the whole or a substantial part of the dwelling-house||2 months|
|7||Within 12 months of a tenant inheriting the tenancy from a deceased previous tenant||The tenancy…has devolved under the will or intestacy of the former tenant||2 months|
|8||More than 2 months’ rent arrears||if rent is payable monthly, at least two months’ rent is unpaid||2 weeks|
Discretionary Grounds for Section 8 Eviction
|Ground||Explanation||Key Legislative Excerpts||Notice Period|
|9||Suitable alternative accommodation is available||Suitable alternative accommodation is available for the tenant||2 months|
|10||Minor rent arrears||Some rent lawfully due from the tenant is unpaid||2 weeks|
|11||Persistently late paying the rent||Whether or not any rent is in arrears…the tenant has persistently delayed paying rent which has become lawfully due||2 weeks|
|12||Breach of tenancy||Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed.||2 weeks|
|13||Damage to the property||The condition of the dwelling-house has deteriorated owing to…waste…neglect or default of the tenant||2 weeks|
|14||Anti-social behaviour||Guilty of conduct causing or likely to cause a nuisance or annoyance||varies|
|15||Damage to furnishings||The condition of any furniture…has…deteriorate owing to ill-treatment by the tenant||2 weeks|
|16||Tenant leaves employment of landlord (if tenancy was a consequence of employment)||The dwelling-house was let to the tenant in consequence of his employment by the landlord…and the tenant has ceased to be in that employment||2 months|
|17||Tenancy granted through false statement by tenant||The landlord was induced to grant the tenancy by a false statement made knowingly or recklessly||2 weeks|
What Happens If My Tenants Don’t Leave?
If your tenants have not yielded possession of the property by the time notice expires, you can begin court proceedings.