by David Asker
10:05 AM, 14th December 2015, About 7 years ago
In our last article, which you can read here http://www.property118.com/q-and-a-for-deregulation-act-2015/82396/ we focused on answering questions raised by private landlords regarding the Deregulation Act 2015 .
This article will answer the remaining questions that were raised in our webinar for on rapid tenant eviction using a High Court enforcement, which included a particular focus on the various eviction notices that need to be served.
Our thanks again to Tim Briggs of LegalMentor, tenant eviction specialists, for joining us in the webinar and co-authoring this article.
If tenants have already vacated or are suspected to have vacated, can the landlord act alone? Is an abandonment notice valid in this instance?
It depends on what the tenancy agreement says. The landlord needs to do everything they can to verify whether the tenant has left (‘reasonable steps’), and get something in writing (a text, an email, a signed document). If the tenant will not communicate, then put up an abandonment notice on the door or window with your 24 hour mobile number, take photos of the notice, take photos of the belongings, put the belongings carefully into black bags and store them somewhere. The length of time you should store them varies depending on what steps you take.
What happens if the agent has put a different landlord name on the Section 21 compared to the AST?
A Section 21 Notice will not be valid if the name of the landlord on the notice is not the actual landlord.
Do you have to return the deposit when you issue a section 21?
Not if the deposit has been registered in a government-backed scheme within 30 days of receipt, and the complete prescribed information provided to the tenant.
Can you expand upon the practicalities of obtaining possession against persons unknown without a court order?
If the tenant has no right to be in the property, your first port of call is the local police team, as squatting in a residential property is now a criminal offence. If the police are ready to be helpful they will attend the property with you and tell the person squatting they have to leave, and if they refuse, they will be arrested. Sometimes the police will claim it is a ‘civil matter’ when it is not. It is only a civil matter if the occupier can prove some sort of right to be in the property (e.g. some sort of written or verifiable oral agreement).
If the “persons unknown” squatters are occupying land, they can be removed either under a writ of possession or Common Law. Squatters in commercial premises will be removed under a writ of possession. Leave is not required to transfer up an order for possession against persons unknown.
The accelerated possession claim form envisages the deposit having been protected. What’s your view on still using the accelerated possession procedure if the landlord has returned the deposit to the tenant before the s21 notice served (i.e. you’d then need to amend the wording of N5B to say the deposit was returned rather than protected)?
You can do that, just attach proof to the claim of the deposit having been returned.
What’s the process where the tenancy agreement is not available (missing or had never existed)?
You will not be able to use the accelerated procedure, as the form requires a copy of a written AST to be attached. In these circumstances LegalMentor can help the landlord to find an effective form of words to explain away difficulties in their witness statement.
If the tenant has no forwarding address, how do you provide them with the notice that you will remove goods? When can we remove goods after tenants have been evicted?
You can remove goods straight away so long as they are then properly stored, and you have carried out all reasonable steps to give the tenant the opportunity to collect them undamaged. The length of time you should store them varies depending on what steps you take, although do remember to take photos and keep an inventory/records of what you store.
Can both the eviction and the rent arrears be enforced at the same time by an HCEO?
Yes they can, provided there is a judgment or order for the rent arrears, as well as for the eviction.
If you ask for transfer up in the claim, is the landlord then forced to use the High Court Enforcement Officer (HCEO) or can they still elect to use the County Court Bailiff?
Once the order has been transferred up and the writ of possession issued, then the landlord must use an HCEO and may no longer use a County Court bailiff.
What if tenant won’t open the door when the enforcement agent calls?
The locksmith will remove the lock, so that the enforcement agent can enter the property and the locksmith will install a new lock once the tenant has been evicted.
Is there a special notice to serve on sub tenants who should not be there?
Yes, it is a Notice to Quit, but the details of the form will depend on whether or not the occupier or licensee is paying rent.
What happens if you can’t get hold off the tenant whose name is on the tenancy?
You need to write to the tenant, then serve notices and bring the claim anyway. It would be in the tenant’s best interest to respond if they want to remain at the property.