Ending your tenant’s right to occupy your property can be just as important as finding the right tenant in the first place. Get the procedure wrong and you can end up with a lengthy wait for possession, sometimes without rent coming in.
Section 21 Notices
Section 21 Notices are used to end Assured Shorthold Tenancies once the fixed term has ended. Using a Section 21 Notice a landlord is not required to show any “fault” or breach of tenancy terms on the part of the tenant. This form of Notice allows a landlord to ask the Court to grant a possession Order without the need to rely on any particular “ground”.
It is essential, however, that the landlord follows the correct procedure.
The Deregulation Act 2015 (the “Act”) and The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015 (SI 2015/1725) (“Regulations”) introduced new requirements for serving a valid Section 21 notice.
From 1st October 2018 the provisions apply to all ASTs in existence at that time.
Service of a notice requiring possession: Section 21 notice
The rules relating to service of Section 21 Notices differ depending upon when you issued your tenancy agreement (and may be affected by whether or not you have taken, and protected, a deposit received from the tenant – see our Guide to Deposits).
Section 21 Notices will have to run for at least 6 months so they are not a quick means by which to commence possession proceedings but the “no fault” nature of the Notice does mean that they can be an effective tool for landlords if they comply with the relevant statutory requirements.
Tenancies granted before 1 October 2015
- For ASTs of properties in England, a section 21 notice does not have to be in a prescribed form but the landlord may choose to serve it in the new prescribed form brought into force by the Deregulation Act 2015 if it wishes to do so.
Tenancies granted on/after 1 October 2015
- Notice must be in a prescribed form – this is Form 6A.
- Notice cannot be served within four months of the day on which the tenancy began or, in the case of a replacement tenancy, within four months of the day on which the original tenancy began.
- The Section 21 Notice will only be valid for six months from the date on which the notice is given
- Notice cannot be served where the landlord is prevented from retaliatory eviction under section 33, Deregulation Act 2015.
- Can only be served where the landlord has complied with the legal requirements relating to providing an EPC, a gas safety certificate and the prescribed information about the rights and responsibilities of the landlord and tenant under the Assured Shorthold Tenancy Agreement set out in “DCLG: How to Rent: The checklist for renting in England “.
Section 8 Notices
Section 8 Notices are used where there is fault on the part of the tenant or, in certain circumstances, where the landlord requires the property back or occupation was linked to employment.
To rely on a Section 8 Notice it is necessary to identify the Ground you rely upon and to evidence the reason for relying on that Ground.
Some of the grounds are mandatory, meaning that the court must grant an order for possession if the landlord can demonstrate the ground (section 7(3), Housing Act 1988). The remaining grounds are discretionary, which means that if the landlord can demonstrate the ground, the court may grant an order for possession if it considers it reasonable to do so (section 7(4), Housing Act 1988).
The grounds for obtaining possession of a property let on an Assured Shorthold Tenancy Agreement are set out in Schedule 2 to the Housing Act 1988 and are relevant to the possession procedure under section 8 of the Housing Act 1988 only.
The Grounds for possession include mandatory Grounds such as
Ground 1 : Landlord occupied the property as its only principal residence before the tenancy started or landlord requires the property back to live in as its only principal residence (no prior occupation is required for this alternative)
Ground 8: Rent is unpaid at the time of the service of the section 8 notice and at the date of the hearing:
- If rent is paid weekly or fortnightly, at least eight weeks’ rent is unpaid.
- If rent is payable monthly, at least two months’ rent is unpaid.
- If rent is payable quarterly, at least one quarter’s rent is more than three months in arrears.
- If rent is payable yearly, at least three months’ rent is more than three months in arrears.
Discretionary Grounds for Possession include
Ground 10: Rent was unpaid by the tenant when the section 8 notice was served and has not been paid by the time possession proceedings are begun
Ground 11: Whether or not any rent is in arrears on the date on which proceedings for possession are begun, the tenant has persistently delayed paying rent which has become lawfully due.
Ground 12: E+W Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed.
Ground 13: The tenant, or anyone living with the tenant, has allowed the property or parts of it (including common parts) to deteriorate.
The amount of Notice to be given depends in each case upon the Ground or Grounds relied upon. In the case of some of the Grounds for Possession it may also be necessary for the landlord to have given the tenant notice before the commencement of the tenancy agreement.
Until March 2021 a minimum of 6 months notice must be given when serving a Section 8 notice, unless your tenant is more than 6 months in arrears, then the notice period you must give is reduced to 4 weeks.