Legal Aid is available to tenants who have grounds to defend an eviction.
When can there be an eviction?
At the end of a fixed-term lease or end of a notice period
When a lease ends, the leaseholder has no right to stay in the property. If they do not leave, the landlord may seek eviction.
The landlord can apply for an eviction at the Petty Debts Court.
When terms or conditions of a lease or tenancy have been broken
If the tenant fails to pay rent due or breaks any other terms or conditions, the landlord may seek an eviction.
The tenant must first be notified in writing that they have breached a term of the lease and given a notice period to rectify the breach. The notice period should be at least seven days, but maybe longer if that is more suitable. For example, a notice period of seven days is sufficient if the breach is unpaid rent. If the breach is noise complaints, it may be more suitable to have a longer notice period.
If the tenant rectifies the breach within the notice period, the landlord has no grounds to pursue an eviction.
If the tenant does not rectify the breach, the landlord can apply for an eviction at the Petty Debts Court.
When a property has been bought or inherited with a ‘sitting tenant’
The tenant’s rights may be affected by the way the landlord has been described in the lease. Some leases use the words ‘including their heirs’ after the landlord and if so then the person who has inherited the property becomes the landlord. Otherwise, a new lease may need to be signed by the new landlord and the tenant. The new lease must honour the terms of the existing lease. This means if there is no clause allowing the landlord to end the lease with a notice period, the landlord must allow the tenant to remain until at least the end of the existing lease.
A landlord may choose to evict a sitting tenant if the tenant fails to vacate after the required period of notice has been given.
What does the Court take into account?
The circumstances of both the landlord and the tenant will be considered by the Court in deciding whether to grant a stay of eviction, which gives the tenant more time to make arrangements.
There are no set down circumstances to be taken into account by the Court, but it can grant between two weeks and two months. In some circumstances, the Court may decline to grant an eviction.
The following may be taken into account
For the landlord:
- Landlord’s need for property to house family members
- Landlord’s need for property to occupy themselves
- Condition of property, if allowed to deteriorate by tenant
- Non or late payment of rent
- Tenant breaking the terms of the tenancy
- Need to bring the property up to minimum standards
For the tenant:
- Regular rent payment
- Good conduct as tenant
- Long duration of tenancy
- Family circumstances, e.g. ages of children
- Difficulty in finding suitable accommodation
- Promise of re-housing by the Housing Gateway
- Evidence the tenant has to show what efforts they have made to find new accommodation
The Court will hear evidence from witnesses and representatives and will give its judgement in terms of an Eviction Order to the landlord, either immediate, or with a deferment for a set period, known as the stay of eviction.
During the period of the stay, the tenant must make arrangements to leave the property or face expulsion by the Viscount’s Officers when it ends. The Viscount’s Officers can physically remove a tenant and their possessions if this becomes necessary.
There is no appeal procedure after the Court’s judgement, which has to be accepted by both sides.
When the landlord has been granted an Eviction Order, an Expulsion Order can be issued by the Court Greffier to be carried out by the Viscount’s Officers.
The Eviction Order may have been granted with immediate effect after the Court hearing or with a deferment for a set period.
The Court decides how the costs of the proceedings and legal costs will be allocated, but usually both sides bear their own costs unless there is clear evidence of malicious actions by one party. In this event the Court may award all or part of the costs to the other party.
If a tenant does not move out at the end of the notice period
If a tenant does not leave the property at the end of the notice period a landlord should try to discover the reason why. The tenant may be having genuine problems finding other accommodation and a little more time may help the situation. The tenant should explain their difficulties to the landlord and try and agree to stay a bit longer.
If a landlord continues to accept rent once they have sent a written notice, the Court may say that the landlord has given up or waived the right to have the lease cancelled. This is because by continuing to accept rent from the tenant, the landlord has continued to accept the lease.