It is much more difficult to gain vacant possession of a protected tenancy than it is an uncontrolled tenancy. This is because the tenant has greater rights to stay in the property and can only be evicted on certain grounds. In addition, when a protected tenant dies a family member who lived in the property with the tenant may be able to inherit the tenancy.
Regaining possession without court action
The only way you can regain possession of a protected tenancy without taking court action is if the tenant volunteers to leave the tenancy and serves you with a notice to quit.
You cannot serve a Notice to Quit on a protected tenant unless you can prove one of the mandatory or discretionary grounds for possession of a protected tenancy applies. If you knowingly serve a Notice to Quit on a protected tenant without grounds, you could be prosecuted for attempting to carry out an illegal eviction.
Mandatory grounds for possession
If you can prove that any of the following circumstances apply, you can apply to the court for an order for possession of the property. The court must grant the order in the following circumstances:
- The property was originally your home and you gave the tenant notice before the tenancy was granted that you intended returning to live there in the future.
- You were a member of the armed forces at the time the tenancy was granted and you gave the tenant notice that you may in the future seek possession of the property in order to live there.
- Before granting the tenancy you gave the tenant notice that you intended to seek possession of the property on retirement (you must be retired from employment to seek possession under this ground).
- The property was originally intended for occupation by a minister of religion or a missionary and is now required for this purpose.
- The property was let under a protected shorthold tenancy which has now expired.
In addition, if it can be shown that the property was originally an agricultural concern the tenancy may be governed by the Agricultural Act 1967. If this is the case, seek advice from a solicitor who may be able to show that you meet one of the mandatory grounds for possession.
To legally evict the tenant, you must first serve a notice to quit, informing the tenant of the ground which you are using to regain possession. The amount of notice you are required to give the tenant depends on how long he has been living in the property.
If the tenant has lived in the property for between 5 and 9 years, you must give the tenant at least 8 weeks’ notice to quit in writing. If the tenant has been in the property for over 10 years the notice period increases to 12 weeks.
Discretionary grounds for possession
You can try to regain possession of a protected tenancy under one of the discretionary grounds for possession. The court will only grant possession under one of these grounds if it believes possession is reasonable under the circumstances. It may help your case if you can source alternative, affordable accommodation for your tenants.
- The tenant is in arrears or in breach of the tenancy agreement.
- The tenant has caused nuisance or annoyance to the neighbours or has been convicted of using the premises for immoral or illegal purposes.
- The tenant has deliberately, or through neglect, damaged the condition or structure of the property.
- The tenant has deliberately, or through neglect, damaged furniture provided as part of the letting.
- You have arranged for the sale or re-letting of the property because the tenant informed you that he intended to leave.
- The tenant has sublet all of the property without your permission.
- The tenant was your employee and the property is now required for a new employee.
- You purchased the property before April 2007 and now need the property for yourself or for members of your family to live in.
- The tenant has sublet the property and is charging an excessive rent.
- The property is on agricultural land which you wish to sell.
Taking possession action
If you have identified a ground under which you can legally seek possession of a protected tenancy, you can begin possession proceedings against your tenant.
You must first serve the tenant with a written notice to quit. The length of the notice period depends on how long the tenant has lived in the property. If the tenant has lived in the property for between 5 and 9 years the notice period must be at least 8 weeks. The notice period increases to 12 weeks if the tenant has lived in the property for 10 years or more.
If the notice to quit period has passed and the tenant is still in the property you need to apply for a court order. Unless you have experience of legal procedures, you should instruct a solicitor at this stage.
Your solicitor will serve a civil bill on your tenant. This bill should include your grounds for seeking possession of the property; any claim for outstanding rent or damages and it should indicate whether you are seeking costs from the tenant if you are successful in court.
The tenant has 21 days to respond and can file an intention to defend. The case will be allocated a hearing date at the County Court which has jurisdiction in the area in which the property is located. Whether the case is defended or not, you or your agent must attend the court hearing to put forward your case.
If you have cited a discretionary ground for taking the possession action, you will need to satisfy the judge that possession is a reasonable course of action. It may help your case if you have been able to source alternative, affordable accommodation for your tenant.