Landlords Protection- Evicting Tenants
Landlords can evict tenants who have an assured short hold tenancy using following notices:
- Section 21– to get your property back after the fixed term ends
- Section 8 – if the Tenant has broken the terms of the tenancy
Tenants can be served a notice under Section 21 or under Section 8, or both. If you are not sure which to serve, consult a solicitor. This guide attempts to clarify issues relating to Section 21 relating to assured short hold tenancies.
What are the changes in Section 21?
Section 21, Evicting Tenants (the possession procedure) in England, has undergone some significant changes recently. New rules and procedures have been introduced resulting in increasing difficulties for the landlords. If the rules are not followed to the letter, it can impasse an eviction attempt meaning a lot of cost to the landlords.
Landlords would not like to evict tenants unless rent arrears start to accumulate and/or damage to the property has / is been caused. In which case landlords can choose to commence the eviction process. However, this would in a best-case scenario, can take around 3 to 6 months.
Old and New Section 21 requirements Comparison
|Pre–1 October 2015 Tenancies||Post–1 October 2015 Tenancies|
|Valid Section 21 Notice||Valid Section 21 Notice|
|Proof of Service||Proof of Service|
|Valid Tenancy Agreement||Valid Tenancy Agreement|
|Deposit protection details and proof of service of (s213) notice||Deposit protection details and proof of service of (s213) notice|
|Details of any licence requirements – for HMOs or in Selective Licensing areas||Details of any licence requirements – for HMOs or in Selective Licensing areas|
|–||Energy Performance Certificate (EPC) served on tenant|
|–||Gas Safety Certificate served on tenant|
|–||The current version (at time of tenancy commencement) of the Government’s “How to Rent Guide”|
C4P has observed since the introduction of these changes, in recent months and even earlier before that, that landlords were misinterpreting the rules of Section 21. Consequently, notices issued under Section 21 resulted in most of the claims being thrown out by judges because of technical errors such as “Incorrectly Served”, “Defective Notice”, “No proof of Service”, “Deposit Protection Error”, “No Property Licence” (where it’s required) etc., which has resulted in huge costs to the landlords in the shape of in aborted possession claims and extensive delays in recovering a property.
Under the new rules (tenancies commencing post 1st October 2015), a new Form 6A Notice would be applicable and would apply to all tenancies, new and old.
For any new Assured Shorthold Tenancy (AST) in England starting on or after the 1st October 2015, the landlord MUST conform to the new requirements, the main ones being:
- Provide the tenant as to rented property with a current copy of the
- 10-year Energy Performance Certificate (EPC) when letting information is given or at the viewing whichever is sooner. New EPC rules are also coming from 2018.
- Annual Gas Safety Certificate for the rental property before the tenant enters the property.
- Government Booklet: How to rent: the checklist for renting in England This MUST be the latest available version at the time of letting and on a tenancy renewal.
- Protect any Tenancy Deposit taken,
- Serve the statutory information (s213 notice) which refer to the tenancy agreement clause spelling out the circumstances under which monies can be withheld, e.g., rent arrears, service changes, damage etc.
- Deposit Protection Scheme’s information leaflet within 30 days of receiving the deposit along with proof of service to the Tenant.
- New EPC rules are also coming and will become applicable from 2018
All above must be able to prove you did all this by having some sort of proof of service, or signed documents from your tenant.
When applying to the court for accelerated possession (Court form N5b) or the standard route (Court Form N5 – where a hearing and a money claim are involved) landlords should supply 3 copies of all the above documents to the court.
Also, whereas the old section 21 notices were of unlimited duration, the new notices cannot be served within the first 4 months on an AST tenancy, and they now have a limited life of 6 months – you must start a claim within the six months, or start again.
A further complication which could potentially stalemate a claim involving new (Post 1st October 2015) tenancies, is the new retaliatory eviction legislation. This applies where a tenant has made a report of the need for repairs and maintenance in a property. If the landlord does not respond quickly (within 14 days), and/or the local authority has issued an appropriate repair notice, then a valid Section 21 notice cannot be served for 6 months after.
Exceptions to Retaliatory Eviction
Following are the exceptions to the retaliatory eviction.
- The property is genuinely on the market for sale
- The property is the subject of a mortgage repossession order
- It can be shown that the tenant has caused damage to the property.
Important documents such as section 21 notices should be hand delivered and signed for, or served and witnessed by an independent person. Posting through the letter box is acceptable providing you have a witness. Where the tenancy agreement says so, notices can be served by first class mail – allow time for delivery.
Some documents can be delivered via e-mail, including the latest version of the “How to Rent” document, PROVIDING that the tenant has agreed to this. However, it is difficult to prove that an email has been received and read unless you get an acknowledgement (difficult if in dispute), so surface mail correspondence, or e-mail in addition to surface mail might be prudent.
Creditable documentary evidence is vital in any legal process. Landlords need to keep proof that you gave notice to your tenants – either:
- fill in the certification of service form (N215)
- write “served by [your name] on [the date]” on the notice
If your tenants don’t leave by the specified date, you can use your completed N215 or notice to apply for an accelerated possession order.
Validity of Section 21 Notice and Deposit Protection
If the deposit is not protected and the prescribed information is not served within 30 days, the landlord is in breach of the rules. He can be subject to a fine and cannot use the Section 21 eviction process. That is unless the deposit is returned to the tenant, in which case the landlord can serve a valid section 21 notice but is still subject to a fine if the tenant should apply to court for compensation.
C4P can help you manage this entire process. We pay strict attention to the rules and process all documentation correctly and help you complete your evictions successfully. Contact us on 0113-2488181 for free consultation.
Source: New feed