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Practical Tips For Removing Tenants in Default

Paul Henson, Partner in the Real Estate Disputes team at law firm Collyer Bristow, starts the first of a series of three articles on removing troublesome tenants.

Removing tenants in default can be fraught with difficulties. Although the process can seem arduous, costly and time consuming, there are ways to protect yourself from unwelcome surprises. In this article, we will focus on tenants occupying residential property under Assured Shorthold Tenancies (AST’s) who are in arrears of rent.

Section 8 notice: Possession for breach of tenancy or other grounds for possession
A section 8 notice can be used at any time during the tenancy if the landlord is seeking possession because the tenant is in breach of their tenancy. There are specific grounds, (set out in Schedule 2 to the Housing Act 1988), that a landlord can rely upon when serving a section 8 notice. We would recommend however, that landlords review all of the grounds in detail to ascertain if there are additional grounds which can be called upon with particularly troublesome tenants. These grounds provide the court with either a ‘mandatory’ or ‘discretionary’ power to grant a possession order.

One of the mandatory grounds (ground 8) includes unpaid rent. It is advisable to also rely on grounds 10 and 11 (non-mandatory grounds) in the section 8 notice. Grounds 10 and 11 provide the court with the discretion if some arrears continue to be outstanding at the date of the hearing or where the tenant has been persistent in late payment of their rent.

In relation to unpaid rent, a landlord cannot serve a section 8 notice relying on ground 8 until rents are at least two months in arrears if paid monthly, or eight weeks in arrears if paid weekly. A section 8 notice must be served on the tenant and we recommend a landlord do so either personally, or by using a process server. From a practical perspective, where a tenant has not paid the rent, landlords should gather and collate as much evidence as possible. Make sure correspondence is in writing where possible, keep records of bank accounts and take attendance notes of phone conversations.

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