Residential Eviction
The majority of residential occupiers who have an agreement permitting them to reside in residential property whether by a licence, tenancy or occupation contract are protected from eviction. There are various pieces of legislation making it unlawful to remove residential occupiers from the let property without following the due process of law. The Protection from Eviction Act 1997 makes it a criminal offence to unlawfully deprive a residential occupier from occupying the let property. It is, therefore imperative that correct advice is sought before taking any action.
If a license or tenancy is excluded, this would usually mean that the agreement is excluded from the provisions of law that would have otherwise protected the excluded licensee or tenant from eviction (see S.3A of the Protection from Eviction Act 1977).
A possession order is not usually required from a Court to lawfully evict an excluded licensee or tenant. However, it is important to note that just because an agreement is labelled as an excluded license or tenancy, it does not necessarily mean that it is an excluded agreement. This is because it is often the practical arrangements between the landlord and occupant that determine the type of license or tenancy that is in place (see Street v Mountford [1985] UKHL).
For contracts that are protected from eviction, such as an assured shorthold tenancy agreement (England) or Standard Contract (Wales) the eviction is a 3 step process as explained below.
Step 1
An assessment of why the landlord requires possession of the property will first need to be carried out. This will enable the landlord to consider the options that are available to them.
A valid notice will need to be served upon the tenant giving them notice of a date by which they are required to give up possession of the property.
If the tenant fails to give up possession of the property by the date in the notice, the landlord will need to proceed to Step 2.
Step 2
An application can be made in the County Court to seek for the Court to make an order for possession. If the claim for possession is issued using the N5 Claim Form, then the Court will list the claim for a hearing. At the hearing the landlord or landlord’s representative can ask the Court to make a possession order. The standard possession order gives the tenant 14 days to vacate the property.
If the landlord issues the claim using the accelerated claims procedure the Court will usually decide the claim without a Court hearing.
At the same time as seeking a possession order, and without making a separate claim, the landlord can often seek for a judgement against the tenant for unpaid rent, interest on any outstanding rent, an order for a tenancy deposit held with a deposit scheme to be released to the landlord and other orders. This cannot be done where the accelerated possession claims procedure is used.
If the tenant fails to leave the property by the date ordered by the Court, the landlord will need to proceed to Step 3.
Step 3
Once a possession order has been made, and if the tenant has failed to vacate the property by the date ordered by the Court the possession order will need to be enforced. Only a certified bailiff (County Court or High Court Enforcement Officer) acting under the warrant or writ of the Court can enforce a possession order.
The landlord can issue a warrant for possession in the County Court and the Court will set a date and time at which the County Court Bailiff will carry out the eviction. The landlord and tenant will be notified of the date and time that the eviction will be carried out.
If the County Court gave the landlord permission to use High Court Enforcement, the landlord can issue a writ for possession in the High Court. This allows a High Court Enforcement Officer to carry out the eviction, which is often much quicker than County Court Enforcement, but more expensive.
The landlord or landlord’s agent will need to meet the enforcement agent at the property on the date and time that the eviction has been set to be carried out. The landlord will also need to arrange for a locksmith to attend the property at the same to ensure access to the property is obtained and to secure the property after the eviction.
We’re a landlord’s and
agent’s first call
We lead the way with evictions, helping landlords are agents nationally with a guaranteed eviction service and free advice line. Click to read our eviction service page.