WRITTEN BY SAMUEL LANE, SOLICITOR, REAL ESTATE DISPUTES

Just like the majority of the people in the United States of America, many landlords in England and Wales are facing difficulty when seeking to evict a tenant that does not want to vacate. So, how do you deal with your ‘Trump’?

I thought that it would be useful to provide a brief overview of the current eviction landscape in England and Wales, with (mediocre…at best!) references to the situation at the White House.

The first stage to obtaining possession of a property that is rented to an assured shorthold tenant is to serve them with a valid notice. This notice may be served pursuant to section 8 or section 21 of the Housing Act 1988 (as amended) and they are commonly referred to as a S.8 Notice and S.21 Notice respectively.

Typically, a S.8 Notice is served when there has been a breach of the tenancy agreement (e.g. rental arrears) otherwise, a S.21 Notice is used. The key difference between these notices is that the landlord must prove the ‘ground(s)’ relied upon to be successful with a S.8 Notice. In contrast, the landlord simply needs to have complied with his statutory obligations to be successful with a S.21 Notice (providing the tenant is not within the fixed term of the tenancy agreement). Thus S.21 notices are commonly referred to as “non-fault” notices which would no doubt suit Mr Trump’s predilection for passing off blame elsewhere.

The ‘ground(s)’ that the landlord can rely upon in a S.8 Notice are set out in Schedule II of the Housing Act 1988 and include things such as the tenant being in rental arrears, the tenant’s anti-social behaviour and the tenant making false statements that induced the landlord into granting the tenancy. I wonder how many American citizens would choose to serve the current occupier of the White House with a S.8 Notice? I can’t help but feel it would be ironic if the American public could rely upon ‘false statements/fake news’ to evict Mr Trump!

As a result of the landlord needing to prove the ‘ground(s)’ relied upon, a greater burden is placed upon the landlord when seeking possession using S.8 Notices. Accordingly, S.21 Notices tend to be more popular if the term of the tenancy has expired (or is close to expiry) unless there are rental arrears (which cannot be claimed at the same time in proceedings based on a S.21 Notice).

Currently, as a result of temporary COVID-19 changes, both a S.8 and S.21 Notice must give the tenant at least six months’ notice before court proceedings can be issued. There are some exceptions for a S.8 Notice; for example, if the rental arrears are the equivalent of six months or more, in which case a 4 week notice period is required.

Following the expiry of the notice, if the tenant remains in the property, the next stage is court proceedings. A hearing is usually required if an claim is defended or a S.8 Notice relied upon, however, a hearing can be avoided if a S.21 Notice is used and the tenant does not defend the proceedings.

Finally, upon a possession order being obtained from the Court and the tenant refusing to vacate, the landlord can apply to the court to instruct bailiffs to carry out the eviction. I, for one, would not be surprised to see bailiffs at the front door of the White House in January 2021. 

It is not unusual for a tenant to refuse to vacate a property and it is important for landlords to know what they are required to do to obtain possession. If you have a similar issue with a tenant, please do not hesitate to contact me on Samuel.lane@irwinmitchell.com.