There are two main ways of repossessing property let under an AST under the Housing Act 1988:
- A section 21 notice
- A section 8 notice
If you want to regain possession of the property on a no-fault basis you need to serve a section 21 notice. This notice is used to regain possession of the property. You don't need to have reasons for wanting the property back. This is the simplest way to get the property back.
If the tenant and property is located in England you should use a Section 21 (Form 6A) notice in England.
If the tenant and property is located in Wales you should use a Section 21 notice for Wales.
A Section 8 notice can be served during the fixed-term where reasons (known as grounds) for possession exist (eg the tenant regularly pays the rent late). A section 8 notice is served when the tenant has breached the tenancy by not paying the rent or by not repairing the property, for example.
You can use either a section 21 or section 8. However if you use a section 21 the tenant is legally required to have a minimum notice of 2 months (so they must physically receive the notice 2 months before they have to leave). If you use a section 8 you only need to give 2 weeks notice before you can apply to court (for grounds 8, 10 & 11). For further information read Evict tenants.
If you decide to use a section 21, make sure you use the correct one depending on where the tenant and property is located (ie in England or Wales).
If the tenant doesn't move out after the notice period has expired on the section 21 notice, you'll have to go to court to seek a possession order.
You can use the accelerated possession service, which is quicker as there is no court hearing. However, it can only be used if your tenant has not left by the date specified in the section 21 notice and you're not claiming rent arrears.
Your tenant is legally obliged to pay rent for the whole of their fixed term unless there is a break clause, or the lease is legally surrendered (terminated), or they sublet, or assign the lease (with your permission and if it's allowed in the lease).
If the agreement does not mention a break clause and you refuse to accept early termination, your tenant will be contractually obliged to pay you rent for the entire length of the fixed term.
Normally it is not necessary for a tenant to give notice at the end of the fixed term of a tenancy. However, there may be some wording in the tenancy agreement that the tenant should provide the landlord with notice (for example 1 months' notice).
It's common for landlords to rely on multiple grounds of possession for rent arrears (ie grounds 8, 10 & 11) if applicable.
Ground 8 (the rent is in arrears) is a mandatory ground (the court must grant possession if this ground is proved). However, the tenant can pay off part of the arrears shortly before the hearing, which means the ground can no longer be proved and possession proceedings have to be abandoned.
If you cannot use ground 8, due to insufficient arrears but still wish to seek possession, you can do so using grounds 10 and 11 (unpaid rent and damages respectively). However these are 'discretionary grounds' where the court may order possession only if it is 'reasonable' to do so.
For further information read Repossessing property - section 8 notices.
If you decide to take a deposit from the tenant, this must be protected in one of three government approved schemes. You must also provide the tenant with prescribed information relating to the deposit within 30 days. Failure to protect the deposit will invalidate any section 21 notice and incur heavy fines against the landlord.
For further information read Deposit protection schemes.
Taking a holding deposit means that the tenant is committed to renting the property and the landlord is committed to renting the property to that tenant subject to checks (eg referencing).
Before accepting a holding deposit, the landlord should confirm in writing:
- how the holding deposit will be used (eg to facilitate reasonable checks)
- if it will be returned to the tenant (the deposit should be returned if the landlord decides not to rent the property)
- if it will be used towards the tenancy deposit or rent
- if any of the landlord's fees will be taken from it
- when some of it may not be refunded (eg if a tenant gives inaccurate information about themselves)
It is important to remember that a landlord can't legally keep all of the holding deposit. They will only be able to retain part of the deposit required to compensate for their reasonable costs in preparing for the tenancy. If a landlord refuses to repay the holding deposit, the tenant can take them to court for breaking the agreement.
Before taking back possession you must be certain that your tenant has abandoned the property. It could be that the tenant is on a long holiday, in hospital or undergoing a short prison sentence. To gain evidence as to whether or not abandonment has occurred, the landlord can make enquiries by speaking to the neighbours or contacting a relative for information on the tenant’s whereabouts.
If the landlord is certain that the tenant has abandoned the property, they can serve a First warning notice under the Housing and Planning Act 2016. Unpaid rent is a ground for serving a notice to end a tenancy after abandonment. For example, if the tenant pays rent monthly then two months’ rent arrears is grounds for eviction after abandonment.
In total three warning notices must be served at the property. If the tenant responds to the notices or repays any rent then the abandonment procedure ceases.
For further information read Tenant Abandonment.