Problem tenants can be the cause of a substantial amount of stress, and require further care so to avoid being accused of harassment. As a landlord you must approach a problem tenant professionally and in accordance with the law, keeping in mind that you are not in a social setting but instead working as the owner of a property. Whilst the law does provide substantial support for tenants to protect them from unjustified eviction, there are remedies and legal procedures available so to provide relief for landlords from problem tenants. The most common of these remedies are Section 8 and Section 21 orders which can be utilised in certain circumstances to reclaim property being occupied by problem tenants.
What Constitutes a Problem Tenant?
Whilst there is no legal definition of what constitutes a problem tenant for the purposes of the law. A problem tenant is typically classified as someone who is causing one of the following issues:
- Late with payment of rent by 14 days or more.
- Behaving anti-socially and/or being a nuisance to the property’s neighbours.
- Caused damage or caused destruction to the landlord’s content or property.
- In breach of any of the terms of their tenancy agreement.
- Refusal to give access to the landlord upon being given reasonable notice.
- Engaging or has engaged in criminal activities in the landlord’s property.
What is the Difference between a Section 8 and a Section 21 notice?
Section 8 Notice
A section 8 notice (or a Section 8 possession notice) is a document which is served to a problem tenant with the intention of recovering the landlord’s property. This notice ought to be served when the tenant has breached the tenancy agreement (typically for late payment of rent) and can be served irrespective of whether the fixed term has expired. There are 17 grounds a landlord may use in order to reclaim possession which are further categorised by whether they are mandatory or discretionary grounds. How long a notice-period is required within a S.8 notice is dependent on the grounds the landlord is intent on using.
Mandatory Grounds – there are eight mandatory grounds that a landlord can rely on when claiming possession of their property. Of note is ground 8, which is relative to the late payment of rent.
Discretionary Grounds – there are ten discretionary grounds which can be utilised by landlords, most often Grounds 10 & 11; which involve rent and the inconsistent payment of rent.
N.b. discretionary grounds, as is hinted from the name suggests that the judge will exercise discretion when deciding whether to grant possession back to the landlord. Typically the judge will consider:
- The circumstances of both the landlord and tenant.
- Financial considerations.
- Professional considerations.
- Social considerations.
- Perceived hardship.
- Instances of harassment by either party.
- The detriment suffered by both parties depending on either outcome.
The judge has discretion when determining his judgement and can adjourn, postpone or suspend a claim depending on the facts.
Section 21 Notice
A S.21 notice is the first step a landlord can take in order to proactively bring an Assured Shorthold Tenancy to an end. Notice must be given in writing and the period of time dependant on whether the tenancy remains in its fixed term at the time the notice is given. The landlord is free to serve a S. 21 notice at any point during the fixed term of the AST, however he is legally obligated to provide two months notice that he intends to repossess the property and he is unable to repossess the property until the fixed term has expired.
Notice given within the fixed term – Notice of a landlord’s intention to repossess can be served within the fixed term, provided certain requirements are adhered to. The landlord must assure that there are at least two months from the date the notice is served to the date which it expires. Furthermore, the date of expiry must fall after the last day of the fixed term, in practice allowing the AST to come to an end before the property can be reclaimed.
Notice given once the fixed term has expired – once the fixed term of the tenancy agreement has expired, the tenant will be living under a periodic tenancy, which has slightly different rules. When this occurs, a landlord must provide a minimum of two months’ notice, assuring that the expiry date of the notice served coincides with the last day of the period of rent. Depending on whether the tenant is paying rent weekly, monthly or quarterly, the last period of rent will be measured from the day the fixed term came to an end.
N.b. A section 21 notice is in no way dependant on the tenant being in rent arrears, where this is the case it is advisable to serve a Sec 8 notice as well.
If the correct formalities are adhered to by the landlord, a Section 21 Order will obligate a judge to grant a possession order. Should the problem tenant still refuse to vacate the premises, the landlord can request that the county court bailiffs evict the person(s) from the property.
The Section 21 Notice Has Expired and the Tenant Still Has Not Vacated.
In this case, there are Court procedures available should the tenant fail to leave the premises after the expiry of the S.21 Notice. Landlords can opt for one of two court procedures; one option is an accelerated possession process and the other is a standard claim for possession.
An accelerated possession process is not fault based, therefore it doesn’t require the tenant to be in breach of the terms of the tenancy agreement but you, as the landlord, must have served a valid section 21 notice requiring the possession; giving the tenant a minimum of 2 months’ notice before you make an application to the court. It also does not involve a court hearing unless the tenant disputes the claim or the Judge discovers errors in the paperwork. It is noteworthy that it is not possible to claim any arrears of rent from the tenant using the accelerated procedure, however a capped amount of legal costs can be recovered.
The standard claim for possession on the other hand involves a court hearing but it does allow the landlord to seek a court order to retrieve arrears of rent and charges for unauthorised use and occupation of the property from the tenant. The standard procedure does often take much longer because of the fact that it involves a court hearing and subsequently will require an advocate to speak on your behalf.
Recovering legal costs from the tenant depends on a number of factors, such as the type of procedure used and the wording of the tenancy agreement.
An accelerated possession claim brought after a section 21 notice can recover fixed costs of £244.50 as well as a court fee of £175 from the tenant. Possession claims brought subsequent to a section 8 notice can recover fixed costs of £226.74 including a court fee of £100.
On the other hand, possession claims that follow the standard claim procedure are open to the court to summarily assess costs to include any court fee that has been paid.