Want to evict a tenant? – further considerations

In order to evict a tenant you must either serve a section 8 or section 21 notice.  When serving either of these notices it is important to check the provisions contained within the tenancy agreement regarding service of notices and then follow these provisions.

Section 8(1) (a) of the Housing Act, 1988 states that the notice must be “served on the tenant” however no further guidelines are given.

It is important to check to see if section 196 of the Law of Property Act, 1925 is mentioned with the tenancy agreement.

Section 196 itself states that notices will be served properly if :-

a. Left at the last known address of the tenant.

b. It is left for the tenant i.e. put through the letter box or affixed to the door.

c.It is sent by registered letter i.e. recorded delivery and is not returned as undelivered.

If there are no express provisions in the tenancy agreement regarding service, then the landlord must prove that the notice has been received by the tenant.

In respect of recorded delivery, we at Solicitors4landlords have found that tenants, especially difficult tenants, will not accept service or never collect the letter, which is then returned as undelivered.

In the circumstances we serve notices by first class post and recorded delivery if specifically requested by the landlord.  In addition we always provide a copy to the landlord and request that the landlord attend at the property and personally serve the notice or post it through the letter box with an independant witness.  As an alternative we can arrange personal service by an enquiry agent however this may cost in the region of £100 plus vat.

Should it be necessary to issue possession proceedings following expiry of either notices in order to evict a tenant proof of service of the notices is submitted to the court by way of a certificate of service.  These are prepared and filed at Court by Solicitors4landlords and are part of our stage 2 fee.

We at Solicitors4landlords will always discuss service of notices with you upon instructions.  For further details call us on 01455 553945.


Tenant Eviction Pitfalls

All Landlords and their Agents need to be aware of the Landlord & Tenant Act, 1987 and the repercussions upon the tenant eviction process should they fail to comply with section 48.

Firstly Section 48 applies where the premises consist of or include a dwelling, so it applies to all residential landlords.

Section 48(1) of the act provides that a landlord of premises to which this part applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notice of proceedings) may be served on him by the tenants.

Section 48(2) provides that “where a landlord of any such premises fails to comply with Sub Section (1) any rent otherwise due from the tenant to the landlord shall be treated for all purposes as not being due from the tenant at any time before the landlord does comply with the sub section.

This effectively means that until a section 48 notice is served rent is not payable and not lawfully due unless the landlord has given an address for service of notices in accordance with the act.

In the circumstances prior to service of either a sectio 8 or a section 21 notice it is imperative to check and see whether either a section 48 notice has been served or whether this is incorporated in the tenancy agreement.  Many tenancy agreements do contain this information but not all, and we have also seen cases where although it is mentioned the address has not been inserted.

Should a section 8 notice be served and  court proceedings issued and no section 48 notice served the rent would not be lawfully due and therefore the tenant could apply to have the claim struck out on this basis.  Unfortunately the landlord would not be able to serve a corrective section 48 notice.  The only solution would be to discontinue the existing court proceedings and possibly face costs penalties, and the serve a section 48 notice and a fresh section 8 notice and then issue fresh possession proceedings.

Landlords and Agents should also be aware that section 47 of LTA 1o87 requires the landlord’s name and address to be given on all demands for rent or any other sums payable under the tenancy.  Howevwer this will not satisfy the requirements of section 48.

Section 48 notices do not have to be served personally on the tenant delivery by post should be sufficient to meet the requirements that the landlord furnishes the tenant with the information by notice.

We at Solicitors4Landlords always check that a section 48 notice has been given and should it have not then we serve a section 48 notice prior to the section 8/21 at no additional cost.