tenancy of residential premises that is granted after February 1997 is
an Assured Shorthold Tenancy (or AST); unless the document creating it
expressly states that it's creating an Assured Tenancy (as opposed to an
Assured Shorthold Tenancy).
Accordingly, all tenancies that are created verbally are Shorthold. So
are all tenancies that are created in writing, if the document doesn't
say what type of tenancy it is creating (i.e. 99% of all cases).
There are two ways of obtaining a court order to end a Shorthold
tenancy: either section 21 or section 8 of the Housing Act 1988. Both
are explained below.
But if the tenancy is an Assured Tenancy, as opposed to a Shorthold,
the section 8 procedure is the only means of obtaining a court order to
end the tenancy.
SECTION 21 POSSESSION:
the tenancy is an Assured Shorthold Tenancy (informally just called a
Shorthold tenancy) the landlord can evict the tenant under section 21 of
the Housing Act 1988.
The landlord must comply with each of the following requirements, and
the tenant has a valid
to the claim if the landlord does not do so.
Firstly, the landlord must give the tenant written notice under section
21 of the Act, ending the tenancy. If the rent is paid weekly or
monthly, which is the usual arrangement, the tenant must be given not
less than two months notice to leave.
However, if the rent is payable quarterly the tenant must be given not
less than three months notice. If it is payable six monthly or annually
the tenant must be given not less than 6 months notice.
The notice cannot take effect during the first 6 months of the tenancy.
If the tenancy has an initial fixed term exceeding 6 months, the notice
cannot take effect during that fixed term. Therefore the tenant always
has at least 6 months in the property.
It is, however, perfectly possible for the landlord to give the notice
during the first six months, or during the initial fixed term, provided
the notice does not take effect until that period has ended.
For example, in a typical tenancy (i.e. one where the rent is payable
monthly) a landlord will often give the 2 months notice at the end of
the 4th month of the tenancy, to take effect at the end of the 6th
It can legally be given at the beginning of the tenancy, in which case
the tenant is actually given 6 months notice, rather than 2 months.
But it cannot be back-dated, nor given before the date on which the
tenancy starts. This is so that the landlord cannot cheat the tenant by
ending the tenancy during the first six months.
The notice is known as a section 21 notice. It must be in writing, but
does not have to be in any particular form.
Secondly, if the tenant does not move out
when the notice expires the landlord must obtain a Court order for
possession (i.e. an eviction order).
Therefore the tenant does not have to leave just because the notice has
expired. The tenant is entitled to remain in the property while the
landlord applies for and obtains a court order. That process usually
takes another month.
Thirdly, if the tenant does not leave when the Court order is served the
landlord has no right to remove the tenant. The tenant can only lawfully
be removed by the Court bailiff. The landlord must therefore go back to
the Court and apply for the bailiff to visit. That process usually takes
a further 2 weeks.
However, the tenant should take into account the fact that on each
application to the Court the landlord will incur legal fees (including
solicitor's charges and Court fees), and the Court will normally order
the tenant to pay part or all of those legal fees.
The advantage to the landlord of using the section 21 procedure is that
it's faster than the section 8 procedure outlined below, because no
hearing takes place. The matter is decided based on the written
documents submitted to the Court, so the eviction happens quickly.
The disadvantage to the landlord of the section 21 procedure is that no
claim can be made for anything except the eviction order. So he cannot
make a claim for rent arrears, and must sue in a separate action for any
arrears not covered by the rent deposit.
SECTION 8 POSSESSION:
section 8 of the Housing Act 1988, the landlord cannot evict the tenant
within the first six months of the tenancy, or during the fixed term (if
it's longer than six months), except on one of the following grounds:
the "section 8 grounds".
The landlord can only use these grounds if:-
(a) The tenancy agreement contains a provision that allows early
termination on the ground in question;
(b) The landlord gave the tenant notice, before the tenancy began, that
the ground in question might be relied on. (Note: This only applies to
some of the grounds - see below.)
One consequence of this is that possession cannot be obtained under
Section 8 if the tenancy was created verbally.
To obtain possession the landlord must -
1. Give the tenant 2 weeks notice ending the tenancy. The notice
(called a "notice seeking possession" or "section 8 notice") must be
given in writing. The notice can be more than 2 weeks in some cases
(depending which ground for possession is relied on - see below); and
can be shortened by the court in some cases (again, depending which
ground for possession is relied on - see below).
2. The landlord must obtain a Court order (called "a possession
order"). To do this he must apply to the Court, satisfy it that the
ground in question applies, and (for some of the grounds - see below)
satisfy it that it's reasonable for the Court to make the order.
3. If the tenant does not leave once a Court order is granted, the
landlord must apply to the Court bailiff to evict the tenant.
The grounds which can be relied on (the "section 8 grounds") are:
Ground 2: That there is a mortgage on the
property, created before the tenancy began, and the lender wants to sell
the property (e.g. because of mortgage arrears) and that the landlord
notified the tenant in writing before the tenancy began that he might
seek possession on this ground (though the court can waive this
Ground 8: That the rent is more than two months (or eight weeks, if
payable weekly) in arrears, both when the landlord gave the section 8
notice and at the date of the court hearing.
Ground 10: That some rent was in arrears, both when the landlord gave
the section 8 notice and when the court proceedings were begun.
Ground 11: That the tenant has persistently delayed paying rent.
Ground 12: That the tenant has broken one or more provisions of the
tenancy agreement, other than payment of the rent.
Ground 13: That the condition of the property has got worse because of
damage or neglect by the tenant or any person living with the tenant.
Ground 14: That the tenant, or someone living in or visiting the
property, has caused a nuisance or annoyance, or been convicted of using
the property, or allowing it to be used, for immoral or illegal purposes
Ground 15: That the tenant, or someone living with the tenant, has
damaged the landlord's furniture.
Ground 17 (Only available if the tenancy was created after 28 February
1997): That the tenant induced the landlord to grant the tenancy by
making a false statement.
THE NOTICE PERIOD:
least 2 months notice must be given for Ground 2. At least 2 weeks
notice must be given for Grounds 8, 10 to 13, 15 and 17. In the case of
Ground 14, Court proceedings can start as soon as the section 8 notice
has been served.
Where the landlord relies on any Ground other than Ground 14, he cannot
begin the Court proceedings during the
The advantage to the landlord of the section 8 procedure is that it can
be used to terminate the tenancy during the first six months or during
the initial fixed term if there is one (the periods when the section 21
procedure can't be used).
CRIMINAL OFFENCES THE
LANDLORD HAS TO BE CAREFUL NOT TO COMMIT:
landlord has to obtain a Court order to evict the tenant, who cannot
legally be evicted (i.e. without his consent) in any other way.
However, the tenancy can be surrendered, by agreement of both the
landlord and the tenant, at any time, even during the fixed term.
To evict a tenant, the landlord must go through the correct procedure:
applying to Court, proving the ground, obtaining a court order, and then
using the court bailiff to evict the tenant. If the landlord evicts the
tenant in any other way, the landlord commits a criminal offence - see
below. Also, if the landlord tries to frighten a tenant into leaving,
the landlord commits a criminal offence - see below.
The criminal offence of harassment is committed if the landlord:-
1. Behaves in a way that is intended to interfere with the peace or
comfort of the residential occupier, or members of his family
2. Persistently withholds or withdraws services which the residential
occupier reasonably requires to occupy the premises as his home
3. Knows, or has reasonable cause to believe, that his conduct is
likely to make the residential occupier leave the premises, or not use
part of them, or not use services the tenant is entitled to use, or not
try to exercise the right to use those premises or services.
The tenant can sue in the County Court for financial compensation for
any acts of harassment. If the landlord is convicted of harassment at an
earlier criminal hearing, there will be little difficulty in obtaining
The landlord may also have broken other parts of the tenancy contract.
A landlord commits a criminal offence of illegal eviction if:-
a) The landlord evicts, or tries to evict, a residential occupier
without following the required legal procedure; or
b) Behaves in a way intended to
interfere with the peace or comfort of a residential occupier or members
of his household and, as a result, the occupier gives up the tenancy; or
c) Persistently withholds or withdraws services which a residential
occupier reasonably requires to occupy the premises and, as a result,
the occupier gives up the tenancy.
Illegal eviction is a criminal offence under the Protection from
Eviction Act 1977 (as amended by the Housing Act 1988), punishable by up
to two years imprisonment and an unlimited fine.
A residential occupier who has been illegally evicted may:-
1. Apply for a court order reinstating the tenancy; or
2. Sue for damages (i.e. financial compensation). This can include any
injury or damage to property, as well as the statutory damages for the
ENDING A TENANCY DURING
THE FIXED TERM:
tenant cannot end the tenancy during the fixed term, unless:
1. The tenancy agreement contains a "break clause", i.e. a provision
the tenant to give notice ending the tenancy during that fixed term
(typically the fixed term will be six months); or
2. By a surrender of the tenancy, with the landlord's agreement.
A fixed term tenancy can't be terminated early by the tenant unless the
agreement allows this or the landlord agrees. If the tenancy does not
allow this and the landlord does not agree to an early termination, the
tenant will remain bound by the agreement and liable for the rent for
the whole period.
If the tenant wrongfully leaves early, the landlord can sue for the rent
due for the remainder of the fixed period. In that case the landlord
does NOT have to mitigate his loss by re-letting the premises.
THE LEGAL POSITION
WHEN THE FIXED TERM ENDS:
the tenant wishes to move out on the day the fixed term ends, the tenant
is not required to give notice to the landlord. This is because the
contract between the landlord and tenant ends when the fixed term ends.
The tenant no longer has any contractual obligations (either to give
notice, or to pay rent).
This is so even if the tenancy agreement contains a provision (called a
"break clause" - see above) specifying that the tenant must give notice
if he wants to leave. Such a clause only applies where the tenant leaves
early, before the end of the fixed term.
If the tenant stays beyond the fixed term, a periodic tenancy begins.
This happens automatically, by operation of law, without either the
landlord or the tenant having to do anything.
The period of the tenancy is determined by the frequency that the rent
is payable: if rent is payable monthly, a monthly tenancy arises; if it
is payable quarterly, a three-monthly tenancy arises; etc.
To end a periodic tenancy, the tenant must give the landlord one
period's notice, in writing, expiring on the last day of a period (i.e.
expiring on the day before the rent is due). Thus if the tenancy is a
monthly tenancy the tenant must give not less than one calendar month's
notice. It is best to give the notice a few days early, because it will
be invalid if less notice is given than is required.
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