Singer Lily Allen has made headlines for tweeting that she was having difficulty regaining possession of her Notting Hill flat currently let out to her tenants, who are diplomats of the Italian Embassy. Her tenants allegedly tried to rely on their diplomatic immunity to avoid eviction. Foreign diplomats are entitled to immunity to the civil and administrative jurisdiction of the courts of England and Wales, with few exceptions.
Although her tenants did eventually agree to vacate the property, Ms Allan’s issue is commonplace for landlords of residential properties.
This is because most tenants in residential properties are protected from eviction by the Protection from Eviction Act 1977 which made it an offence to harass a tenant of a residential property or to evict a residential tenant without a court order. If you unlawfully evict a tenant, you may face a criminal conviction with a £400 fine and/or a sentence of up to two years imprisonment.
Therefore, you must ensure that you follow these three steps when regaining possession of a residential property.
- Serve Notice
Different types of tenancies require different service so you must be sure to serve the correct notice on your tenant.
Most private landlords provide Assured Shorthold Tenancies to their tenants (unless you are a live-in landlord, the tenancy commenced before 28 February 1997 or the tenancy is not for a fixed term). If you fall into this category, you must serve a section 8 or a section 21 notice.
If the notice expires and the tenant has not vacated the premises, you must not simply re-enter the property and change the locks. You must continue with the next step of issuing proceedings.
A lot of landlords serve incorrect notices meaning that they have to serve another notice which causes delays. It is sensible to take legal advice before the notice is served on the tenant.
- Issue proceedings
The safest way to regain possession of a residential property is by issuing an application for an order for possession. There are 17 grounds for possession on which a landlord may rely, 8 of which are mandatory grounds. If the Court finds that the ground is proven, the Court must find in favour of the landlord.
The remaining 9 grounds are discretionary, meaning that if the ground is proven, the Judge may use their discretion to decide whether the landlord should regain possession. Therefore, issuing proceedings for possession on a mandatory ground will leave you in a far stronger position than if you issued on a discretionary ground.
- Recover possession after judgment
In the event that the tenant continues to refuse to vacate the property after judgment, you should not attempt to evict the tenant by yourself. You must make an application for a warrant or writ of enforcement from the Court and a bailiff will then be appointed to carry out the eviction. Once this happens, you can then change the locks.
Failure to comply with any of the above steps may give rise to a claim against you for breach of the covenant for quiet enjoyment or unlawful eviction/harassment and you may be liable to the tenant for damages.
If you require any advice on regaining possession of a property, contact our experienced Landlord and Tenant solicitors on 0845 050 1958. Alternatively please complete an online enquiry form and I will be in touch with you to discuss your circumstances.
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