Provided the proper procedure is followed, evicting contractual/common law tenants should not be difficult. However, as the rules are different for this type of landlord from others mentioned here, legal advice may need to be sought.
Contractual tenancies include:
• lets of residential properties to companies (but not business premises);
• lettings at a rent of over £25,000; or
• lettings by some resident landlords.
Holiday lets, and university lettings to students also fall in this category.
Note that some resident landlords may set up contractual tenancies and other will only give a licence to the occupier. Although these occupiers are “excluded occupiers” for the purposes of the Protection from Eviction Act 1977, and no court order is required to evict them, the Criminal Law Act 1977 still applies. This states that nobody should use or threaten violence to gain entry to someone’s room if there is someone present and who is opposed to the forced entry – they risk criminal proceedings if they do.
If the Common Law Tenant is in Arrears of Rent
It is possible to bring proceedings for possession on the basis of non-payment of rent and in this event there is no need to serve any specific form of notice on the tenant first (although it is advisable to warn them that possession proceedings are imminent if they do not pay).
However, the judge has unlimited powers to suspend or stay the order as he thinks fit. Many larger student-type HMOs in the private rented sector are likely to be exempt from Housing Act 1988 status due to the annual rental income (assuming the letting is all on a single contract it is the total rent payable under the contract that counts not the individual contributions).
The terms of the contract should specify when and how the tenancy can be terminated.
If the Common Law Tenant is not in Arrears of Rent
It is not normally possible to evict a tenant during the fixed term unless there is a break clause in the tenancy agreement or the tenant breaches the terms of that tenancy agreement and the agreement states it can be terminated for breach. It is technically possible to seek possession for breaches of the tenancy agreement other than non-payment of rent, but this is not often successful. Usually, a notice under section 146 of the Law of Property Act 1925 is required, giving the tenant notice that they are in breach of the tenancy conditions and an opportunity to put things right, if possible. Legal advice should be sought from a solicitor experienced in eviction work to do this properly.
Contractual/common law tenancies do not have the same ‘statutory periodic’ run-on that the Housing Act 1988 assured and assured shorthold tenancies do. At the end of a fixed term, the landlord will be entitled to apply for a possession order. If possession is not required, a specific renewal should be agreed. If it is a periodic tenancy the landlord can end the tenancy at any time by serving a ‘Notice to Quit’ (a section 21 notice is often referred to as a notice to quit but this is not correct and not the document referred to here). This must give a notice period of no less than four weeks (but longer if the rent is payable monthly or more). The notice must expire on the last day or the first day of a period of the tenancy and must be in writing and must contain prescribed information. Once this has expired, if the tenant has not vacated, the landlord can apply to the court for an order for possession which they are entitled to as of right. A landlord does not need to give any reason for asking for possession.