A client once asked what the first stage in divorce proceedings is and that being my umpteenth case, I honestly responded, “The wedding”.This analogy holds equally true for eviction proceedings. When entering into the tenancy matrimony as it were, it is crucial to be mindful of the much-despised but real possibility of an eviction in the long term. Failure to do so could prove costly if and when the dreaded day of reckoning comes because, by that time, your options could be compromised. The purpose of this article is to walk you through the essentials of the eviction process with specific regards to Assured Shorthold Tenancy.
AVAILABLE EVICTION OPTIONS
Eviction of AST tenants is primarily governed by the Housing Act (the Act). There are two salient sections of the Act that govern eviction, namely s8 and s21 of the Act. At this point it is sufficient to note that an s8 notice requires grounds for eviction whereas an s21 notice is a free pass which allows a landlord to evict without furnishing grounds. We will reveal more on these options as the article unfolds.
THE FIRST STAGE – PRE-EVICTION COMPLIANCE
The time of inception of the AST is crucial for every landlord. There are certain onerous pre-requisites which if ignored at the beginning would deprive the landlord of the option of a section 21 eviction.
The law deprives a landlord the option of a section 21 notice:
- during the first four months of the tenancy (but where the tenancy is a replacement tenancy, the four-month-period is calculated by reference to the start of the original tenancy and not the start of the replacement tenancy â€“ see section 21(4B) of the Housing Act 1988);
- where the landlord is prevented from retaliatory eviction under section 33 of the Deregulation Act 2015;
- where the landlord has not provided the tenant with both current copies of an energy performance certificate and gas safety certificate;
- where the landlord has not provided the tenant with the Ministry of Housing, Communities and Local Government’s publication “How to rent: the checklist for renting in England”;
- where the landlord has not complied with the tenancy deposit protection legislation namely ensuring the tenant’s deposit:
- is not more than 5 weeks’ rent;
- is protected in a scheme
- was protected not more than thirty days after inception of the most recent contract.
- where a property requires a licence but is unlicensed in relation to Houses in Multiple Occupation (“HMO”) or
- where the landlord is prevented under section 17 of the Tenant Fees Act 2019. (NB No section 21 notice may be given in relation to a tenancy where a landlord has breached section 1(1) or Schedule 2 of that Act so long as all or part of the prohibited payment or holding deposit has not been repaid to the relevant person or applied to the rent or deposit with the consent of the relevant person.)
Resultantly, to retain the prerogative of evicting a tenant for no fault of their own, it is key to comply with the above pre-requisites at time of entering of the contract or such other time as may be prescribed.
THE LATTER STAGE – EVICTION NOTICE SERVICE
The other crucial time in respect of evicting a tenant is the time at which the landlord would want to evict the tenant. The decision as to which notice to adopt is dependent primarily on whether there are grounds for the intended eviction, and if so, what the grounds are?
As aforementioned a section 21 notice is appropriate where the landlord does not have particular grounds for eviction. Suffice it to say, the landlord, in that case, should check for their compliance with the aforementioned checklist.
Prior to the outbreak of the pandemic, a landlord had to give a tenant 2 months’ notice to evacuate before instigating legal action to achieve the same. However, due to the current COVID-19 virus, the timeframe for a section 21 notice has been fluctuating throughout different periods of the year. This is encapsulated as follows:
|Time of Year||Minimum Notice Period|
|Before 26 March 2020||2 Months|
|Between 26 March and 28 August 2020||3 Months|
|On or after 29 August 2020||6 Months|