CONTACT PHILIP SYVRET
There will be many reasons why a landlord will, from time to time, want to ask a tenant to leave a property. If rent isn’t paid, damage is caused to the property, or if the landlord simply wants to recover the property for his own purposes, the process to evict a tenant if they refuse to go can seem daunting.
The process required under Jersey law is however relatively straightforward, providing a balance between landlord and tenants’ rights. This short guide will help you understand the processes.
An eviction order cannot be made by the Court unless the term of tenancy has been terminated. There are two main ways of terminating the tenancy namely: -
- Giving three months’ written notice to the tenant, or
- An application to the court to cancel the tenancy on the basis that the tenants have seriously breached the terms of the agreement.
The first notice (a termination notice) is straightforward but it is important to ensure that three clear months’ notice is given and the writing is clear so the tenant has a clear understanding that notice has been given.
Of course, terminating in this way can only be done where there is no fixed term lease in place. If there is a lease, notice should be given at least three months before the end of the lease.
The second type of notice (a fault notice) must give the tenant an opportunity to remedy the defect, for example to bring rental payments up to date or repair damage to the property. Sometimes this can be a source of frustration; if a tenant persistently pays rent late but remedies the default in payment at the last he can avoid an eviction order. The Court does have a discretion however where there are persistent repeated breaches of tenancy terms to grant an eviction. In those circumstances specific, legal advice would be necessary.
Serving a Summons
Once the notice period has expired or if the tenant has failed to remedy a default you are entitled to issue a summons seeking an order for eviction. Eviction orders are normally dealt with in the Petty Debts Court.
A summons should be drafted with care. If there are arrears of rental those should be claimed together with any interest which the tenant may be obliged to pay under the terms of the tenancy. If an unremedied breach of the tenancy agreement is alleged that should be set out in detail in the summons, although it is not necessary to set out the evidence of the breaches at this stage.
It is important to get the summons right. If it omits relevant information the landlord could find himself going back to square one having to give fresh notice to the tenant with all the delay that that causes. Specific legal advice is recommended.
Service of the Summons
The summons for an eviction order must be served personally on the tenant through the Viscount’s Department. Whilst a summons for a simple debt can be served in the post, a matter significant as a person being asked to leave their home requires the clarity and certainty of a service by the Viscount’s Department which is the executive department of the Jersey courts.
Once the summons has been served, the Viscount’s Department will provide a record of service. That record of service together with a summary of the claim must be be filed with the Petty Debts Court Greffier (that is to say the court clerk) so the proceedings can be listed for hearing.
Stamp duty will be payable to the Viscount for service of the proceedings and for the filing of the summons with the Petty Debts Court, presently measured in the sum of a few hundred pounds.
Getting a Court Order
On the return date, the landlord and tenant are required to appear before the Magistrate in the Petty Debts Court. The usual order the Court can make includes: -
- A judgment in respect of any arrears of rental.
- Authorisation to the Viscount to remove the tenant and their belongings from the property after a given date.
- Permission to the Viscount to use reasonable force, if necessary, to enter the premises and carry out removals.
- Provision for costs, including who will be liable for the Viscount’s expenses of eviction.
- An authority to the Viscount to seize assets to discharge costs and rental.
As a starting point the Magistrate may refer matters to a mediation to see if discussion could resolve the matter. Otherwise the Magistrate will hear submissions and evidence of both the landlord and tenant before making a decision. If the application is to terminate the tenancy because of a breach by the tenant, the Magistrate will need to consider that a suitable opportunity has been given to remedy default and that the default is sufficiently serious to justify termination.
Whether the tenancy has been terminated by notice or by the Magistrate’s decision because of a breach, the court then has a wide discretion to delay putting any eviction into force. In particular the Magistrate will look to balance relative hardship of putting the tenant out of the property immediately, as against the hardship the landlord will face not having immediate possession.
Whilst the Petty Debts Court is very much a user-friendly court, facing up to and cross-examining a tenant can be challenging both technically and emotionally. If matters have got to this stage then the assistance of an experienced lawyer is undoubtedly needed.
Putting the Eviction Order into Effect
Once the court has determined the matter, an order will be issued giving a date by which the tenant must leave and remove all of his/her belongings.
More often than not with the potential of an enforced eviction on a fixed date in mind, the tenant makes arrangements to move on. If they don’t, the Viscount has the power to physically remove the tenant and his belongings.
Under the usual order the Viscount will also have the power to seize belongings to discharge rental arrears if that applies.
The enforcement of an order is invariably difficult. In practice it is better, via an agent or a lawyer to encourage the tenant to take all steps to move on without the anguish that the enforcement of an order will cause.
The Petty Debts Court has a regime of fixed costs. A fixed costs award against the tenant for the bringing of eviction proceedings is presently in the order of £330. In addition, the court can order the payment of the court stamps on the filing of the summons and the Viscount’s record of service. That will invariably leave a shortfall between the cost paid to a lawyer to advance proceedings and the amount that can be recovered.
There are however many pitfalls for the unwary or inexperienced in the eviction process. By recovering possession of the property swiftly a landlord can stop any further damage arising and re-let the property to a paying tenant. Often the cost of engaging an experienced lawyer to move matters on promptly brings an early benefit in avoiding repairs and getting a stream of rental flowing again.
How can we assist?
The property team at Benest & Syvret represent a significant number of residential landlords and have in-depth experience of a very wide range of circumstances that can give rise to eviction proceedings. Regular appearances before the Petty Debts Court in relation to eviction matters has brought an almost unrivalled strength in depth in this area.
If you need advice or assistance in any residential eviction process, please contact Philip Syvret on 706670 or Abigail Watkins on 706631.
This guide is intended for information purposes only and should not be relied upon as formal legal advice. Specific legal guidance should be sought in relation to any eviction or tenancy matter.