There are many situations in which a Landlord might find themselves in need to gain back the possession of their property. This can be for a variety reasons, ranging from bad tenants causing damage to property, disturbance to neighbours or simply falling behind with rent, or can be a result of circumstances that have nothing to do with your tenant. It might be the case that you wish to sell the property and need it to be vacant, or you are considering re-purposing it, or any number of reasons. This blog will look at the situations where a Landlord doesn’t wish to put forward the grounds for which they require the property back.
How to get a tenant out of your property?
If you wish to ask your tenants to move out of the property that they have rented, the law requires that the tenants are first issued with a valid notice. A valid notice has to be served before a landlord can commence possession proceedings.
In England and Wales there are several grounds which a landlord may use and most require some degree of breach from the Tenant. A section 21 notice, however, can be used without the landlord having to state any grounds and is referred to as a no-fault notice. (Please note, There are different rules in Scotland and Northern Ireland) That means that as well as not having to state a reason for you wanting your tenants to leave, your tenants do not have to have breached the tenancy agreement. In many cases, this might be a preferable solution also for instances where you do not have a strong evidence of the breach, even though you consider that a breach has taken place.
What makes a Section 21 invalid?
There have always been strict requirements that govern whether a notice is valid or not, no more so than with the effects of COVID-19 that has resulted in the introduction of several regulations governing the eviction process.
Before issuing a section 21 notice you must first ensure that you have done the following:
Issued the tenants with:
- The property’s Energy Performance Certificate. An EPC is a certificate, issued by an assessor, which shows information about the energy efficiency of the property to which it relates Energy Performance of Buildings (England and Wales) Regulations 2012 (SI 2012/3118). The EPC Regulations affect both residential and commercial property.
A copy of the EPC must be issued to the prospective tenant a copy of the EPC, unless the property is exempt or it is not required, at the earliest opportunity. This should preferably before the tenant occupies the property.
A landlord who fails to issue a valid EPC before issuing a section 21 notice will not be able to rely on the notice as it will be deemed invalid. They will in effect have to issue a valid EPC and then issue a new section 21 notice regardless of what stage the proceedings have got to.
- The government’s ‘How to rent’ guide. From the 1 October 2015 any assured shorthold tenancy, or renewal, the tenant must be issued with the How to Rent Guide. This must be the most recent version at the commencement of the tenancy. The most recently version is dated 10 December 2020.
If a section 21 notice is issued without the tenant first being issued with the relevant version of the How to Rent Guide (it must be issued as a hard copy unless the tenant consents to it being sent electronically) any section 21 Notice issued will not be valid
- A current gas safety certificate for the property, if there is a gas supply in the property. From the 1 October 2015 any assured shorthold tenancy, or renewal, the tenant must be issued with a valid gas certificate.
Landlords must make sure that gas checks are carried out every 12 months. Checks must be carried out by a Gas Safe registered engineer. All landlords must provide a copy to tenants before they occupy the property and within 28 days of the check being carried out, if they are existing tenants.
As well as invalidating a section 21 notice issued in England, if the certificate is not valid or not provided to the tenant the landlord may also be guilty of an offence and subject to a fine.
- The tenancy started after April 2007 and you have not put the tenants’ deposit in a tenancy deposit scheme or issued the prescribed information.
As a landlord, or agent acting for a landlord you are required to place a tenant’s deposit into one of the tenancy deposit schemes within 30 days for receiving the deposit as well as providing the tenants with the prescribed information within the same time limit. You will be required to provide the prescribed information in a tangible form. Providing a link to this information will not be sufficient.
You cannot use a section 21 if:
- The tenancy is not an assured shorthold tenancy.
- It is less than 4 months since a new assured shorthold tenancy started.
- The council has issued an improvement notice on the property and less than 6 months has passed since this was issued.
- Under the Tenant Fees Act 2019 you have not refunded to the tenants any unlawful payments.
- If the property is a House in Multiple Occupation (HMO), you do not have a HMO licence.
Having outlined the above it is important to note that in April 2019, the then Housing Secretary James Brokenshire made known the government’s plans to abolish section 21 notices. This would follow on from the changes in Scotland where assured shortholds tenancies and section 21 notices have no longer been in use since December 2017. We may of course end up with a similar set of rules.
The current position is that in England and Wales section 21 notices are still in use. As we do not know when these regulations may come into effect or what any new requirements or restrictions there may be landlords may wish to act now should they wish to rely on a section 21 notice. Currently any notice issued is valid for 10 months.
What is Section 21 notice period?
A section 21 notice issued before the 26 Match 2020 required at least two months’ notice. That was then extended to 3 months’ notice from 29th September 2020.
From the 29th September 2020 Landlords were required to give six months’ notice to their tenants.
There are of course some exceptions to this such as cases of anti-social behaviour, domestic violence or where there are rent arrears of six months or more. These breaches would of course require a different form of notice, a section 8 notice.
The default position, for section 21 notices, if there is no further legislation, is that this will revert to two months in April 2021, but it is impossible to rule out further changes.
In Wales, if you gave notice on or after 24 July, the notice period must be at least 6 months. If you want to evict your tenants because of antisocial behaviour, the notice period is still 3 months or more.
At the end of the expiry of a section 21 notice, should the tenants not move out, you as the landlord would need to apply to the court for possessions. Should you do anything to force the tenants out without first obtaining a court order you could face a charge of illegal eviction which is a criminal offence.
It is therefore essential that you, or any agent acting for you, ensures that all procedures have been followed correctly even before tenants have moved in to avoid any problems should you wish for your tenants to move out.
How and when to apply for Section 21 notice?
Since the Deregulation Act 2015 there has been a requirement for landlords to use a section 21 notice within certain time after which time the notice can no longer be relied on. This used to be six months, but this deadline has now been extended to ten months from service of the notice, which in practice means landlord will have about four months after expiry of the notice to start a possession claim. From 2 September 2020, landlords must use the updated form 6A which reflects the six-month minimum notice period as well as the ten-month time limit for taking court action. Failure to use this form will invalidate the section 21 notice.
From 20 September 2020, new Practice Direction 55C (PD 55C) applies and will remain in force until 30 July 2021.
How to calculate Section 21 notice dates?
In order to ensure that the dates of the section 21 notice are applied correctly the first and most important place to look is the tenancy agreement. This may just specify that notice can be issued at any time. What landlords may often fail to notice is that the tenancy agreement can state the date or period in time that notice can be issued, such as before a rent payment date.
For example, if the rent payment date is the 1st of the month and the tenancy agreement states notice is to be issued before a rent payment date. If the landlord wants possession of their property on 1 August 2021 they would need to ensure that the notice is issued and served (received) by the tenants before the 1 March 2021 otherwise the tenant would be entitled to remain in the property for another month.
How RVS Solicitors can help you?
Our team of experts are at hand to advise you on what would be the most effective and efficient way to seek to recover your property.
We can also advise you on what you may have to first put in place to issue notice in order to ensure the notice issued is valid. This saves you both time and money.
We are also able to guide you through the court process should your tenants remain in the property and legal action be necessary.
We also pride our selves in looking at what practical options you may have in order to avoid court action especially as the consequences of COVID-19 has meant that at various times court action has been put on hold.
For further information regarding possession or any other private residential matter in England, Scotland or Wales please do not hesitate to contact us on 020 3372 5125 or fill in our online enquiry form.