Rapid Eviction Required

[hitman126]

Hello, I served a section 21 notice on my tenant recently and upon expiry of the notice, she's refused to move out. I am therefore preparing to apply to my local county court for possession, but kindly require clarification on which forms to submit.

 

I am aware I need to submit claim form n5b, but what I wish to know is whether there are any other documents/forms I also need to submit with it. I would very much appreciate some assistance on this, as the justice.gov.uk website itself appears not to have any guidance notes available for users..

 

Thank you.

[hitman126]

Hello,

 

 

Could someone kindly help me with this please.

 

My wife rented our property to a family friend about a couple of years ago. Unfortunately, we currently cannot locate the tenancy agreement that was signed between them, although I'm led to believe the tenant has her copy with the council's housing department. The tenant also paid a fraction of her monthly rent as deposit, but this was never protected.

 

We recently decided to sell the rented property and for that reason served the tenant a Section 21 Notice and following its expiry, the tenant, acting on the thoughtless advise of the council's housing department, has chosen not to leave the property until a warrant of possession is granted by the county court. This has seriously damaged our efforts to sell the property, especially as we were due to fully complete its sale to a buyer within 48 hours.

 

We're not resigned to applying for possession through the court by completing form N5B, but I'd like to know whether it would be possible to present a valid case bearing in mind we may never find a copy of the tenancy agreement to present to the court and also that we never secured the tenant's deposit.

 

Are we still able to apply to the court for possession even in the absence of the above two key items?

 

Thank you

[Lea_HTH]

Your s21 is invalid, and always will be until or unless you return the deposit to the tenant AND he/she accepts it. If he/she refuses it back, then you're stuck as a s21 cannot be valid without appropriate protection of the deposit AND provision of the prescribed information. Applying for possession based on it will just cost you money as you WILL lose.

 

Local authorities will ALWAYS advise those in rented property to stay where they are until a notice of evicton arrives (not just the possession order), as they have hardly any housing stock and want to avoid responsibility for assisting people with housing until they absolutely have to. Clearly the tenant wants the local authority to rehouse them, so they have to do as they are told (even if they'd probably prefer to just leave - if they do so, the LA will find them intentionally homeless and refuse to assist). It may seem 'thoughtless' advice to you, but it is accurate advice based on what the LA will do for the tenant. If you had protected the deposit (that's thoughtless) then you wouldn't be in this position, as the lack of the tenancy agreement would not be fatal to a claim for possession - but the lack of deposit protection is.

 

If you or your wife were planning on living in the property, you could serve a s8 notice, using ground 1 - which informs the court that you intend to move back into the property. It is a mandatory ground, so you would be guaranteed possession - but of course, if the tenant comes up with the real reason for you using that ground, i.e. that you failed to protect the deposit, want to sell the property, and have no intention of moving back into it...the court won't be particularly happy with you and your claim may be struck out.

 

Does the tenant pay the rent? If not, there are other grounds that can be used to evict under s8.

[Lea_HTH]

Also - the tenancy agreement must make provision for the use of a s8 notice.

[hitman126]

Thanks guys. Really appreciate your prompt and useful feedback.

[hitman126]

I took on a new tenant on an initial AST fixed term of 12 months, starting Sunday 15 December 2013 until 14 December 2014. I however wish to end the tenancy at the earliest possible time, due to an issue which has arisen, compromising the tenancy agreement and making the tenant's position untenable.

 

I am therefore contemplating serving a Section 21(b) Notice as soon as possible, or any other effective notice. I would therefore be grateful for any advise on:

 

1 - The earliest date within the stipulated 12 month AST that I can serve the Section 21 notice.

 

2 - What date to insert in the notice as the 'Expiry Date'?

 

3 - An alternative notice that would be more effective than a Section 21 Notice in achieving a prompt eviction.

 

PS: Just for the record, the tenant's issue in question is not to do with unpaid rent.

Edited December 16, 2013 by hitman126

[Derwent]

I'm pretty sure that you can only use S21 to take possession at the end of the fixed term, i.e. giving at least 2 months notice to quit at the end of the AST fixed term. In order to get a tenant out during the AST fixed term you have to use S8 but can only do that if one of the specific grounds for regaining possession has been satisfied. If the tenant has a fixed term AST and has not given grounds for eviction under S8 then I'm afraid that you are not able to do much about it. Additionally, you can only use S21 if the tenant's deposit is registered in a secure scheme.

[raydetinu]

It would appear that the only way to remove tenant would be by agreement and offering compensation!

[Ubiquitious]

What are the circumstances?

 

 

Remember that you have contracted to the Tenant for 12 months.

 

 

Short of them unreasonably damaging the property or not paying rent there is nothing you can do unless the Tenant chooses to leave which as someone said above you may have to pay compensation for (I would say at the minimum you should offer the removal costs and 1 months rent for a similar property).

 

 

You will also be contracted to allow the Tenant quiet enjoyment of the property. It would be advisable not to harass your Tenants to leave.

[hitman126]

Hello,Thanks for the various feedback.

 

I am not entirely keen to spell out the full reasons for me wishing to evict the tenant, but let's just say it's in breachof the tenancy agreement. The tenant's deposit has already been lodged with the DPS and I certainly have no intention of harassing the tenantto leave, hence the enquiry about an appropriate and lawful process.

 

I stand to be corrected on this, but I am almost certain though that I have read in the past that a Section 21 Notice could be served after the 6th month of an AST, even where it has a 12 month term stated on the agreement. Then again, I could be wrong.

[Ubiquitious]

You can issue a Section 21 tomorrow but it would only come into effect at the end of the 12 month period.

 

 

There are some breaches that would allow you to seek eviction before the end of the term. I cannot remember them all but it can be for things such as constantly being late paying rent, damaging the property, being anti social.

 

 

That would require a court order and the breach would have to be substantial for a judge to agree an eviction.

 

 

Generally it is best to issue 6 month leases. It gives you the Landlord more flexibility and if the Tenants are good you do not have to constantly issue new leases - just let it become a rolling lease and you will only ever need to give 2 months notice.

[raydetinu]

this may help.

http://www.landlordzone.co.uk/content/grounds-for-possession

going to be difficult without some default on the part of the tenant, even then they can argue in court!

[hitman126]

this may help.

http://www.landlordzone.co.uk/content/grounds-for-possession

going to be difficult without some default on the part of the tenant, even then they can argue in court!

 

If a Section 21 is valid, the tenant cannot challenge the eviction as there are no grounds for dispute. It is a mandatory eviction notice (or possession order if one wishes to call it that).......as long as it's valid.

[hitman126]

I am still quite certain that an S21 Notice can be served on a tenant once the first six months of the tenancy have elapsed, regardless of the term stated on the AST contract.Or am I barking up the wrong tree?

 

In any case, I have a break clause in the tenancy agreement which states that the tenancy can be ended by either party after four months of the tenancy, provided a 2 month notice has been served. Does this still not give me grounds to evict the tenant after 6 months of the 12 month contracted term?

 

This is the exact wording of that 'Mutual Break Clause':

 

Any time after four months of the initial fixed term of this tenancy (or after a similar period following a fixed termextension to the original tenancy) either party may invoke this break clause by providing a minimum of two months writtennotice to the other (such notice to expire on the last day of a rental period of the tenancy). At the end of such notice thetenancy shall end and all obligations and responsibilities shall cease; subject nevertheless to any claim by either partyagainst the other in respect of any breach of any of the terms and conditions of the agreement.

Edited December 18, 2013 by hitman126

[Desperate Daniella]

Well, you have the break clause but only after four months plus two months' notice.

 

They have only been there for three days. Are they doing something criminal? It's difficult to know how to advise when we don't know why this is troubling you.

[raydetinu]

As you have a break clause, yes you can end contract at six months; issue S21 in time to give two clear months notice.

remember this is just a notice of repossession. only after this date can you proceed to court to get an eviction.

If you want them to leave earlier for any reason then you will have to negotiate with them.

would help if you tell us what the problem is!

[Lea_HTH]

If a Section 21 is valid, the tenant cannot challenge the eviction as there are no grounds for dispute. It is a mandatory eviction notice (or possession order if one wishes to call it that).......as long as it's valid.

 

A s21 notice is neither of the things you mention - it's neither a 'mandatory eviction notice' or a 'possession order'. It is a notice, issued by the LL, informing the tenants that he intends to seek possession of the property after a specified date.

 

A s21 can be challenged on various technical issues, and on discriminatory grounds... If you want the tenants out for a reason they will identify as discriminatory, expect them to inform the judge - and if that is true, your s21 will be rejected. It may be a no fault claim, but it CAN be defeated in certain circumstances.

 

A s8 is the better way - and there are multiple mandatory grounds you could use, but if you don't state what the issue is, no one can advise.

[Derwent]

A s21 notice is neither of the things you mention - it's neither a 'mandatory eviction notice' or a 'possession order'. It is a notice, issued by the LL, informing the tenants that he intends to seek possession of the property after a specified date.

 

A s21 can be challenged on various technical issues, and on discriminatory grounds... If you want the tenants out for a reason they will identify as discriminatory, expect them to inform the judge - and if that is true, your s21 will be rejected. It may be a no fault claim, but it CAN be defeated in certain circumstances.

 

A s8 is the better way - and there are multiple mandatory grounds you could use, but if you don't state what the issue is, no one can advise.

 

I read recently that around 70% of S21 notices are rejected by the courts due to being incorrectly completed or other technicalities like no proof of service etc