Property possession myths

In this article, our property disputes team aims to answer some of the most common questions they receive about residential property possession.

Can a landlord evict a tenant immediately after serving notice?

The reality is that serving a Section 21 or Section 8 notice is just the first step. When tenants receive an eviction notice, they may choose to leave, but if they don't, they are not legally required to leave until they have a court order—and in some cases, a bailiff's warrant is also needed.

Landlords with multiple properties must note that Section 21 notices are soon to be obsolete, with new legislation just around the corner.

Once new legislation is in place, landlords with fewer than five properties will be considered' small landlords' and still be able to issue Section 21 'no fault' eviction notices upon the implementation of the Renter's Rights Bill.

The abolition for 'larger' landlords has been delayed until an assessment of the possession process is complete and the Secretary of State has been satisfied that the court system is deemed to have sufficient capacity to deal with possession proceedings.

Can landlords evict their residential tenants themselves?

No! It's a myth.

Self-help evictions are illegal when it comes to residential tenants.

Examples of illegal evictions include:

• Changing the locks
• Using force or threats to make the tenant leave the property
• Stopping the tenant from accessing parts of their home

Landlords cannot take matters into their own hands. Eviction requires the proper notice to be served, whether a Section 21 or a Section 8 notice and potentially a court order and enforcement by bailiffs or High Court enforcement officers. Attempting an unlawful eviction could lead to serious legal consequences, including fines, potential criminal charges, and compensation to be paid to the tenant.

Can a landlord refuse to return a tenant's deposit if they owe rent?

Tenant deposits must be protected in an authorised Tenancy Deposit Scheme ('TDS'), from the start of the tenancy.

Failing to comply with deposit protection rules could prevent a landlord from serving an eviction notice and result in financial penalties. Protecting the deposit properly is key to protecting your position as a landlord.

If a deposit is not protected in an authorised TDS, the landlord (on demand) must return the return the deposit in full, unless agreed with the tenant otherwise.

If a deposit is properly protected, the terms of the tenancy agreement and the rules of the TDS will govern what the landlord can deduct at termination. Where there is disagreement, the TDS will have a dispute resolution mechanism.

Does serving a Section 21 notice guarantee eviction?

No, a Section 21 notice doesn't always guarantee success. Your notice could be invalid if certain requirements aren't met – such as providing a valid gas safety certificate, energy performance certificate, or the "How to Rent" guide before the tenancy starts.

Can an Assured Shorthold Tenancy be agreed verbally only and not in writing?

Yes, but proceed with caution.
Without a written tenancy agreement, proving the terms in court, such as when the tenancy started and when and how much rent is paid, can be difficult. It also means that as a landlord you would not be able to use the accelerated possession process and would instead have to start possession proceedings via the standard possession procedure.

Tenants whose tenancies started on or after 28 February 1997 can request that their landlord provide them with the basic written terms of the agreement. The landlord must then provide this within 28 days of the request.

It is always best practice to have a written Assured Shorthold Tenancy agreement in place so that both landlord and tenant are clear on the tenancy terms.

It's wise to get legal advice for any property possessions, including serving the relevant notice when there is no written agreement, and assessing whether you have received a valid notice.