Unlawful Eviction Factsheet

Few landlords are unfamiliar with the problems caused when tenants fail to pay rent. The worst scenario is the landlord cannot pay their mortgage and their lender starts court action. At this point, many landlords are tempted to take matters into their own hands, changing the locks or applying pressure to make the tenant leave before the tenancy ends.

Unlawful evictions: the perils

But if a landlord wants to secure possession of a property to re-let or sell, they must follow the correct legal procedure. If they fail to, they can face:

• An allegation of unlawful eviction, which may amount to a criminal offence
• A civil claim by the tenant for compensation or re-instatement to the property

There are many cases of significant damages being awarded against landlords who have taken a chance with the law. The courts will never accept excuses for failing to obtain a possession order and a bailiff’s warrant of eviction, no matter how desperate the landlord’s situation. And ignorance of the law does not provide any sanctuary.

The correct legal process

Fortunately, the correct procedure for evicting tenants is relatively straightforward and need not be costly, although it does take time.

Giving notice

If a tenant is unwilling or unable to pay arrears, landlords should immediately seek legal advice to determine what type of notice should be served on them. Notice has to be drawn up and served correctly or the court could find it invalid and the landlord will have to start the process all over again (including paying all the costs again).  There are two types of notice:

• Accelerated possession procedure – this does not result in an order against the tenant for rent arrears
• Ordinary procedure – a longer process which gives an order for rent arrears and possession

Housing benefit

At this stage, if not before, it is a good idea for landlords to check whether a tenant is receiving housing benefit. If this is the case, landlords can ask to be paid direct to prevent arrears from increasing. The council has to pay the rent direct to the landlord if a tenant is more than eight weeks behind with the rent.

Securing eviction

The notice itself does not give landlords the right to take back a property.Tenants are entitled to remain until a possession order is made by the court. But this still does not give landlords the right to forcibly evict. Instead, a further application has to be made to the court for a bailiff’s warrant.

Bailiff’s warrant

The bailiff’s warrant granted by the court gives the court bailiff the right to attend the property on a pre-arranged day to evict the tenant if they have not already left.

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