Process of Eviction for Private tenants
Generally private tenants will have either (1) an assured shorthold tenancy (ie the tenancy is fixed for a period of time on both landlord and tenant – generally 6 months or a year), or (2) a rolling tenancy (the period of the tenancy is not fixed). The above on assured tenants also applies to assured shorthold tenants (most private tenants where tenancy started after February 1997)
Accelerated possession proceedings
But, a landlord can use something called “the accelerated possession procedure”. Here no grounds for possession are needed (can’t be used during the first six months of the tenancy or during the fixed term if longer). The notice can be served during the fixed term but can’t expire before the end of it.
Step 1 – landlord gives tenant 2 months’ notice to leave (s21 notice)
- If tenant doesn’t leave when notice expires landlord will issue eviction proceedings with the court
- The tenant has 14 days to file defence
- The court has no discretion in these cases.
- The only defences are technical defences e.g. legal papers are not correct, tenancy details not correct, deposit not protected, landlord has not got required HMO licence.
- The Judge looks at papers and usually orders a possession without a hearing. Possession date is general about 14 days afterwards.
If there is a legitimate defence then a court date will be set.
- You can ask court to postpone the date for up to 6 weeks in cases of exceptional hardship – but “exceptional hardship really does need to be “exceptional”.
If you don’t have a defence it can be better not to try and “file” or serve a defence. If you do serve a defence the judge will make a decision – usually that you have to leave the property. If you don’t file a defence then nothing happens unless the landlord makes a written request to the court for the claim to be considered by a judge. Then the judge will tell you you have to leave the property, but you have probably bought yourself some extra time.
If you have a defence, tactically you may not want to make the landlord aware of it until as late as possible i.e. when you have to file the defence form. But, as the defence is just that some of the paperwork is incorrect, again all you are doing is buying yourself some time.
In most cases the landlord will simply get the paperwork right and then serve a new notice at the court. If a possession order is made a costs order will usually be made against the tenant – fixed costs if don’t defend but if do defend could be all of landlord’s legal costs.
Landlords can normally also claim for rent arrears to be paid by the tenant, but a landlord can’t claim for rent arrears in accelerated claim – they would instead have to bring a separate money claim (i.e debt claim), which very few actually do.
Most people can’t be evicted without an order from the court. Exceptions include people sharing with the landlord and some people in hostels/B&B’s.
It is a civil and criminal offence for a landlord to:
Evict a protected occupier without a court order.
Harass a protected occupier especially with the intent to make them leave. Tenants can claim damages for harassment/illegal eviction and also injunction orders against re-letting and for reinstatement
Landlord wants to increase your rent?
There are four ways a landlord can lawfully increase the rent.
Frist, he can build rent review terms into the tenancy agreement, for example, “the rent will increase by 5% annually” or “the rent will increase annually by the RPI plus 2%”. In these cases the tenant is stuck with whateever is in the agreement.
Second, if the landlord issued a fixed term tenancy, he can offer the tenant a new fixed term contract at a higher rent. If the tenant accepts the new fixe term he is tied into the new rent. However, the tenant can say that he does not want a new fixed term and is happy for the tenancy to continue as a periodic tenancy (that is, one that runs for one rental period to the next).
Third, the landlord and tenant are free to negotiate a rent increase and once agreed this becomes the lawful rent. If a landlord asks a tenant to pay a higher amount and they start paying it (even if it’s because they think they must) they will be deemed to have agreed it.
If none of the above applies but the landlord wishes to force an increase on the tenant, he must serve a valid ‘Landlord’s Notice proposing a new Rent’ (see attached). The first thing a tenant who receives such a notice should do is to check it’s validity. You’ll see from the notes that there are a few pitfalls and landlords often get the date of the increase wrong which invalidates the notice. If the tenant
takes no action the increase will come into effect on the due date. If the notice is correct and the tenant is unable or unwilling to try to negiotiate a lower rent he can refer the notice to the London Property Tribunal Service and a market rent will be determined by a Rent Assessment Committee. It is then up to the tenant to provide the Committee with evidence of lower comparable market rents. Once the RAC determines the rent any increase will be backdated to the due date on the s.13 notice so tenants are advised to make sure that they put this money by.
The above sounds good in principle but shorthold tenants need to remember that they don’t have security of tenure, so a successful referral to the RAC to get the rent increase reduced could result in the landlord giving them two month’s notice of requiring possession. This is why we’ve been campaigning for the RAC determined rent to be attached to the property, not just to the subject tenancy. This would remove the incentive to get rid of the tenant because the landlord would have to charge the RAC rent to any new tenant, which is not the case now.