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Stuart J
Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 24582
Experience:  Senior Partner at Berkson Wallace
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I have a tenant in rent arrears for 6 mouths, is out of

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I have a tenant in rent arrears for 6 mouths, is out of contract today. I understand I can’t evict him physically as a tenant. However, can I evict him if I serve a notice that I no longer charge rent from him, so he becomes a illegal trespasser and then evict him with 2 days notice please? appreciate your advice!
JA: Because laws vary from place to place, can you tell me what state the property is in?
Customer: London
JA: What are the terms of the lease? Any issues related to maintenance or upkeep?
Customer: No
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: No

Hello. Thank you for the question. It is my pleasure to assist your with this today.

Please bear with me and I will be online and off-line from time to time and therefore, may be delayed getting back to you. You will receive an email when I reply.

Have you served him the mandatory notices?

if not why not?

and did you supply him with all the mandatory renting guides including protecting his deposit?

I don’t know who gave you that advice but I wouldn’t be taking any more advice from than in the future because they could not be more wrong.  They may think they’re being clever but if you followed the advice, you would end up with a huge claim against you for unlawful eviction.

You have to give them formal notice in writing.

You would normally be getting rid of them under section 8 but also section 21 as the tenancy has expired.

Depending on what you get rid of them, the notice can be up to 4 months as you will read here.

Any notice must be in the statutory format in writing.

The notice period originally was 2 months under section 21 and it could be as low as 2 weeks under section 8 but it changed to 3 months on 25 March last year and to 6 months on the 31st of June last year.

From , 1 June 2021, those notice periods are now generally 4 months.

However certain notice periods are shorter such as rent arrears but there have to be far more rent arrears now than there were before.  It used to be 2 months, no wit is 6 months.  So it appears to be more favourable to the landlord but in actual fact it isn’t.

The government have produced this webpage on exactly this subject:

The notice periods may be coming back to normal, maximum of 2 months, at the end of September but that has yet to be confirmed.

Once the relevant notice has expired, you can then make an application to court to take possession and he still doesn’t move out a further application for a warrant of possession for bailiffs to physically evict him.

Thank you for letting me assist you with your legal question.  I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards

Stuart J and other Property Law Specialists are ready to help you
Customer: replied 6 days ago.
Thanks a lot Stuart for your advice! We have served a section 8 notice for 4 weeks on 14 July. Now ready to apply to court hearing as the tenant ignored the section 8 notice. We will probably add a section 21 notice 1st Oct when the notice period reduced to 2 months as you suggested. We heard section 21 can be easier to serve than section 8, is this correct? All we care about is to take the possession back as soon as possible. Shall we apply section 8 court hearing include the monetary judgement for 6 months rent arrear as well? what are the options for us to fasten the process at the moment?

One is no more difficult to serve than the other.  I would always serve both because if one fails for any reason, you have the other to fall back on.

Section 21 can be problematical because it must cover 2 rental periods and two calendar months so depending on when the rent is paid in the month, it could be almost 3 months notice.

If it’s one day short, it will get thrown out and for that reason I always suggest that landlords give 3 months and section 21, not 2 because that way it can never be short.

More section 21 notices are defective first time round, for being short than are actually correct

Customer: replied 5 days ago.
Thanks a lot Stuart, we have already served section 8, will serve section 21 on 1st October. Tenant sent message to me today asking “so what happens if I don’t move out on Sunday, it will have to be a court proceeding or court order before I can leave?” what does he mean and how shall I answer please? Many thanks and much appreciate for your great help!
Customer: replied 5 days ago.
We asked him to leave on this Sunday yesterday, he originally agreed on face to face talk

My suggestion for a reply would be, “if you don’t move out on the day the notice expires, I will make a court application for an order for possession and thereafter an order for a warrant of possession for bailiffs to physically evict you.  I will also ask the court to award costs against you.  They will be substantial probably into thousands of pounds and you don’t pay there will be a judgement registered against your name which will affect your credit history.

Customer: replied 5 days ago.
Thanks so much for the clear explanation and helping us through the stressful time! We also served a section 1 notice to double the rent for overstaying since the tenant’s tenancy agreement expired. Can we add the rents from the notice period to the CCJ monetary claim please? “DOUBLE VALUE UNDER SECTION 1 OF THE LANDLORD AND TENANT ACT 1730”
Customer: replied 5 days ago.
Will the court bailiff enforce the monetary and costs judgement as well for us please?
Customer: replied 5 days ago.
Unfortunately, this tenant do not care about his credit history
Customer: replied 5 days ago.
We had a final reply from the tenant… I think he is intentional and basically is exploiting the system… “ I ve spoken to my solicitor and he has advised me fang it is illegal to evict a tenant out of a property after the tenancy agreement has ended without a court order, so I will not be moving until a court order has been issued and it is also illegal to give new tenants a key whilst a tenant is occupying the property which is a breach of health and safety to the current tenant who resides in the area property !”
Customer: replied 5 days ago.
Apologies for the list of questions. It is so frustrating as it is a reply from a tenant are 6 months rents over £13000 in arrears and exploiting the legal system to take advantage of landlord, full of luxury goods LV, Cartier’s etc in the flat, but just wouldn’t pay the rent. So the last few questions from us are 1. is the section 1 1730 Act double rent notice effective? 2. Can court bailiff enforce on both monetary and eviction notice? 3. How shall I reply to the tenant on such an shameless final message?
Customer: replied 5 days ago.
Thanks a lot on the helps!

You would need to go to court to get a separate judgement in respect of the rent arrears and then instruct bailiffs separately.

He may be bothered when the bailiffs turn up to take his television and his iPad.

The 1730 act is in respect of tenancies which run from year to year which wouldn’t apply if this is a six month tenancy

But it wouldn’t stop me claiming it and letting the judge in the County Court decide otherwise.

Customer: replied 4 days ago.
Understand thanks so much! Now I am checking the section 8 served and will submit today. For a 4 weeks notice on ground of 6 months rent arrear, I served on a 14th July stated court proceeding will start until after 11th August (4 weeks on the same day of the week) I suppose that is correct counting right? I just double check hope the case won’t be thrown out …
Customer: replied 4 days ago.
Apparently because of the backlog it will take months before we can gain possession back, really frustrating dear Stuart.
Customer: replied 4 days ago.
By the way, it has two person on the tenancy contract, if one of the tenant surrounded the key, can we then invalid the tenancy agreement removed the remaining person?

Unfortunately even at the best of times, the legal wheels turn exceptionally slowly.  That on top of the protracted notice period is extremely frustrating particularly when the tenant is just not paying rent.

Notices by 1 tenant is noticed by them all if they both leave the property but if they don’t leave the property, they both remain liable under the terms of the tenancy even though one of them has left.  They don’t escape liability by leaving you may want to use them to put pressure on the person remaining.

Customer: replied 4 days ago.
Thanks Stuart very much for answering! Also I just realised because I didn’t protect deposit within 30 days. I could face counter claim in Section 8 notice. So I shall use section 21, but I will need to return deposit in full before issuing section 21 notice right?

I know one case that was in front of me recently where the landlord protected the deposit within the requisite period of time but didn’t give the tenant the details until a few months later and he was ordered to pay twice the deposit as compensation.  To my mind that’s absolutely ludicrous to compensate someone when they actually haven’t suffered any loss or risk.  I must admit I think this legislation is completely bonkers.

Provided you have complied with all the other statutory requirements as well such as copy tenancy agreement, energy performance certificate, gas safety certificate, electrical safety certificate, how to rent in England booklet, then you can give  both notices