Unwelcome visitors

Ian Hunter on a shift in law that helps landlords evict tenants

Going away for a while? Thinking of letting some friends stay in your flat in return for paying the mortgage and other outgoings on the understanding that they will leave when you find a buyer? It's easily done, often without the slightest problem, but what happens when it goes wrong? How do you get unwelcome tenants to go?

Most residential tenants rights are governed by the Housing Act 1988. This Act was ushered in with the purpose of encouraging greater numbers of private landlords into the rental market. Some tenants are still governed by rights contained in the Rent Act 1977 which provided tenants with much greater protection against eviction.

The easiest route by which a landlord can ensure a swift repossession of his flat is entering into an assured shorthold tenancy.

This tenancy provides the landlord with the right to terminate the lease on two months' notice provided that the notice starts to run at any time after the expiry of the first four months of the lease. This means that the minimum length of the lease is six months.

Until the end of February this year, certain procedures had to be followed to ensure that the lease was given assured shorthold status. This included serving on the tenants prior to the start of the lease a notice of the prescribed form. This notice set out the limited nature of the tenants' rights.

If the correct procedures were not followed, or the landlord and tenant merely reach a verbal understanding, the tenant gained enhanced protection against eviction. The arrangement is then known as an assured tenancy.

The effect was that a landlord could only regain possession of the property at the end of the lease if he had proved to the court that it should exercise its discretion in his favour. This compared unfavourably with the assured shorthold tenancy, where the landlord was entitled to possession as a matter of right.

If the tenants were granted an assured tenancy, the landlord could have had quite a struggle on his hand. If the tenants were unemployed and eligible for legal aid, with a determined solicitor they could deny legal access to the property for some time.

However, the good news for landlords is that at the end of February this year the presumption was reversed in the landlord's favour. Now the assumption is that if the parties have merely reached a verbal understanding the tenancy agreement is treated as being an assured shorthold tenancy, guaranteeing the landlord the return of his property on two months' notice at any time provided the tenancy has been in existence for at least four months.

A landlord can always apply to the court for an order to evict the tenants if they have committed a serious breach of the terms of the lease. In order to avoid such a claim tenants should abide by the terms of the lease, such as paying the rent regularly and carrying out any repairs for which they are responsible. If the tenants fall behind with the rent for only a short period of time, it is unlikely the court will grant an order for repossession.

Even if the landlord is not granted repossession he can still send the bailiffs to the premises to recover any rent arrears. This can take place during daylight on any day but a Sunday.

The landlord can seize anything of value belonging to the tenant in order to settle the rent arrears. There is one qualification. He cannot seize possessions such as bedding or clothes, nor can he seize an innocent third party's property. Force must not be used by the landlord to gain entry.

Likewise, force should not be used to evict squatters. The law governing squatters does have teeth, but if the correct procedures are not followed it is likely to bite back. If the squatters do not have permission to be there, the procedure should be swift. Problems arise if the landlord has acquiesced in the arrangement. If he has accepted rent the squatters may have strong grounds for arguing they are tenants.

A court hearing involving squatters will usually be held within a few days. If the court is satisfied the entry was unlawful it will issue a warrant for possession to the court bailiffs. The bailiffs will enforce the judgement as soon as possible.

Landlords should avoid taking the law into their own hands whether the occupants are unwanted tenants or squatters. The landlord could end up paying damages to the occupants and may be denied possession by a court order while matters are resolved. If anyone is injured, the landlord could end up with a criminal record.