How to Evict a Tenant for Unpaid Rent
Evicting a tenant is often a landlord’s last resort, especially when the issue is unpaid rent. While it’s always preferable to resolve disputes amicably, sometimes legal action becomes unavoidable.
Where property is let on an assured or an assured shorthold tenancy, the Section 8 process is the primary mechanism available to landlords to evict tenants based on unpaid rent. This guide provides a step-by-step explanation of the Section 8 process, ensuring you stay compliant with the law and protect your rights as a landlord.
What Is a Section 8 Notice?
A Section 8 notice is a notice under the Housing Act 1988 and is used when a landlord has legal grounds to seek possession of their property. One of the most common grounds for serving a Section 8 notice is unpaid rent. The relevant grounds under Schedule 2 of the Housing Act include:
- Ground 8: The tenant owes at least two months’ rent (if rent is paid monthly) or eight weeks’ rent (if rent is paid weekly).
- Ground 10: The tenant is in arrears at the time of serving the notice and at the time of the court hearing (no minimum amount required).
- Ground 11: The tenant has a history of consistently failing to pay rent on time.
Ground 8 is a mandatory ground for possession, meaning the court must grant possession if at the time the notice was served on the tenant, and as of the date the Court hears the claim for possession, the tenant owes at least 2 months worth of rent (where rent is payable monthly).
Grounds 10 and 11 are discretionary, giving the court some flexibility based on the circumstances. This means the Court may grant an order for possession, but could also make a possession order suspended on terms, or dismiss the claim if the Court does not find it reasonable to grant a possession order.
1. Ensure Compliance with Legal Requirements
Before serving a Section 8 notice, the landlord needs to ensure they have complied with their relevant legal obligations. Non-compliance can give rise to a defence or counterclaim being made by the tenant in response to a claim for possession based on unpaid rent.
Carrying out a risk assessment before serving a Section 8 notice is wise, as it can minimise risk, and give you an opportunity to resolve any issue which could otherwise provide a tenant with a defence or counterclaim.
One of the most common defences and counterclaim brought by tenants relates to housing disrepair. However, there are also other technical defences, such as where a landlord has failed to provide the tenant with the landlord address for service, which invalidates a Section 8 notice, or any demand for unpaid rent.
2. Serve the Section 8 Notice
To serve a Section 8 notice, use Form 3, a prescribed legal form available from the government’s website. You must:
- Clearly specify the grounds you are relying on (e.g., Ground 8, Ground 10, Ground 11).
- Include details of the arrears (dates and amounts owed).
- Provide the tenant with at least 14 days’ notice to remedy the issue or prepare to vacate the property.
The notice must be served in accordance with any term of the tenancy agreement relating to how notice must be served. it is important to use a method of service which is reliable and proven.
You can watch our video on how to complete the Section 8 notice here.
3. Wait for the Notice Period to Expire
Once the notice has been served, you must wait for the 14-day notice period to pass before taking further action. During this time, the tenant may choose to pay the arrears in full, which could prevent you from proceeding on certain grounds like Ground 8.
If the tenant has failed to pay the outstanding rent or vacate the property, a claim for possession can then be made in the County Court.
4. Apply for a Possession Order
If the tenant does not resolve the arrears or vacate the property after the notice period, you can apply to the court for a possession order. This involves:
- Completing a N5 Claim Form (application for possession) and a N119 Form (particulars of claim).
- Submitting these forms to your local county court along with a copy of the Section 8 notice and proof of service and other appropriate documents, such as a witness statement.
- The Possession Claims Online service can also be used for possession claims solely based on unpaid rent.
- The court will review your application and set a date for a possession hearing.
5. Attend the Possession Hearing
At the possession hearing, both you and the tenant will have the opportunity to present your case. Be sure to bring:
- Copies of the tenancy agreement.
- Rent records and proof of arrears.
- Evidence of compliance with all legal requirements (e.g., deposit protection certificate, gas safety certificates).
If you are relying on Ground 8 and the arrears exceed two months, the court is likely to grant possession provided the correct procedure has been followed, the correct documents have been filed with the Court, served upon the tenant and no defence or counterclaim is being made by the tenant.
For discretionary grounds (10 and 11), the judge will consider the tenant’s circumstances before deciding.
The Court can be asked make ancillary Orders in addition to a Possession Order, provided such orders are pleaded in the claim, these could include:
- A judgement against the tenant for unpaid rent,
- Interest on the outstanding rent,
- A daily rate of rent to be payable by the tenant until the tenant gives up possession of the property,
- For the tenancy deposit (if any) held with the tenancy deposit scheme to be released to the landlord in part satisfaction of the outstanding rent.
- Permission to transfer up to the High Court for enforcement purposes.
- An order that the tenant pays the landlord legal costs.
6. Enforce the Possession Order
If the court grants a possession order and the tenant still refuses to leave, you may need to apply for a warrant of possession to instruct bailiffs. This process can take several weeks, so factor in additional delays when planning your next steps.
High Court enforcement could also be used where the County Court has granted permission to transfer up to the High Court for enforcement purposes. This permission should be sought at the possession hearing once the Court has made the Possession Order.
Alternatives to Eviction
Before proceeding with eviction, consider whether alternative solutions might resolve the situation more efficiently:
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Communication: Open a dialogue with the tenant to understand their circumstances and explore payment plans or temporary solutions.
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Mediation: Engage a professional mediator to negotiate a resolution without going to court.
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Use a Guarantor: If the tenant has a guarantor, contact them to cover the arrears.
While these alternatives can save time and money, they may not always be practical or successful, particularly in cases of persistent arrears.
Tips for Landlords
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Maintain Detailed Records: Keep thorough documentation of all rent payments, correspondence, and notices.
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Act Promptly: Address arrears early to prevent them from escalating.
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Seek Legal Advice: If you’re unsure about any step, consult a solicitor or a landlord association for guidance.
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Stay Compliant: Familiarise yourself with changes to landlord-tenant law, including the upcoming Renters’ Reform Bill, which will remove Section 21 “no-fault” evictions.
Conclusion
Evicting a tenant for unpaid rent using the Section 8 process can be complex and time-consuming, but following the correct legal steps will protect your rights and minimise delays. By maintaining compliance, documenting every stage, and considering alternative resolutions where appropriate, landlords can navigate this challenging process with confidence. As always, staying informed about evolving legislation and seeking professional advice will ensure you’re well-prepared for any eventuality.
If your tenant is failing to pay the rent as and when it falls due, you can contact our legal team, who will be able to assist you through every step to achieve your aims and objectives.