How to stop evictions going wrong

This is the 15th post in my 2017 Legal Update series.

Evicting tenants is not a nice thing to have to do. Sadly, however it is sometimes necessary.

If it is necessary then it is best all round if you just get on with it. In many cases eviction proceedings are brought solely to force Local Authorities to re-house tenants, in which case it is in the tenant’s interests to get things resolved as soon as possible too.

There is also the fact that, even if you get them right, court proceedings take a long time, much longer than most people realise. It’s rare for eviction proceedings to take less than three months at the very least – normally it is closer to six months or even more.

Most people find court proceedings stressful – another reason to get them over and done with ASAP. Sadly, however things often take much longer than they should due to landlords’ ignorance of the rules.

Here are some of the things they get wrong:

• Issuing proceedings based on section 21 when they have not protected the deposit.
• Getting their section 21 notice wrong for some other reason
• Issuing proceedings before their eviction notice period has expired
• Letting agents signing the court paperwork (only the litigants themselves or their solicitors can sign claim forms)
• Using a ‘discretionary’ ground for possession (I’ll explain this further down)

The main problem though is landlords issuing eviction proceedings in a ‘gung ho’ manner, without doing proper preparation and research, thinking that they know it all when they don’t.

If you make a mistake, or if you use a ‘discretionary ground’, then this allows the tenant to put in a defence. The Judge will then set the case down for a longer hearing which will be at least three months away (often longer), and you are in for a long, expensive case which could take many months to resolve.

Apart from the fact that if your tenants are not paying rent, the rent arrears are going to be horrendous – if your tenants are able to successfully defeat your claim (and the fact that the Judge has not rejected their defence out of hand means it is not entirely off the cards) – you will probably be ordered to pay their legal costs!

This often seems massively unfair to landlords who may actually have a valid claim, but who lose their case because they made some sort of technical error.

However, Judges take the view that making someone homeless is a very serious thing which could be life changing for tenants (which it often is). They are not prepared to do this (particularly if there are children living at the property) unless landlords have followed the proper procedure and got their paperwork right.

Often landlords assume that because their tenants have behaved so badly, the Judge will take their part even if they have not followed all the rules properly. But this is a very dangerous assumption. They won’t. Or rather they may be sympathetic but they won’t find in your favour.

So, you need to get things right.

Discretionary and mandatory grounds

When you bring a claim for possession you need to hang your case on a legal ‘ground’. There are two types of ground – mandatory and discretionary.

• Mandatory grounds are those where, if you get things right, the Judge is not allowed to refuse to make an order for possession.
• Discretionary grounds are where, even if you do make out your case, the Judge has a discretion whether or not to make an order for possession. Even if he does make it, he can stay or suspend it ‘on terms’ meaning it may be a very long time before you actually get possession – if indeed you ever do.

When landlords read the discretionary ‘grounds’ for possession they often get quite excited as their tenants may have breached many of them – for example if they have breached terms of the tenancy agreement.

However, using a discretionary ground is NOT a good idea – save in exceptional cases. And there are fewer exceptional cases than you might imagine. So, don’t go there. Wait until you can use one of the mandatory grounds. Or at least get proper legal advice before starting a claim.

Further information:

If you can’t afford to use solicitors, my Landlord Law service has a lot of help for landlords wishing to evict tenants.  You can find out more about Landlord Law here

Probably the most popular talks at our 2017 Conference were the two taken by barrister Peter Marcus on defended possession proceedings and court procedure.

You can see a short clip from the defended possession proceedings talk here. Both talks are available as part of the 2017 Conference Course.

As a practising housing barrister Peter has extensive experience in using the courts, which is reflected in his training. His talk on Court Procedure will be invaluable training for whatever type of court claim you are involved in – and most landlords are involved in some sort of court claim at some time or other in their landlord career.

You will find more information about the Conference Course here.

In my next and final post in this series I will be discussing training generally and giving you some tips.

Tessa Shepperson is a specialist landlord & tenant lawyer and runs the popular Landlord Law online information service.

To see all the articles in my series please Click Here

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