This article discusses the Eviction of Residential Tenants in England – Changes to the Section 21 notice procedure.
Under the Deregulation Act 2015, there have been some changes to the service requirements in relation to the notices (known as Section 21 notices) that have to be served to end an Assured Shorthold Tenancy (“AST”).
The new procedure applies to all English ASTs beginning on or after 1 October 2015, and will also extend to apply to existing tenancies after 1 October 2018.
It is important for landlords not to fall foul of the new procedures, as in doing so they will risk the notice being invalid, and therefore jeopardise their right to end the tenancy and (if necessary) evict the tenant.
Firstly, the new standardised S21 form ‘6a’ must be used. This can be found on the gov.uk website by clicking here.
Secondly, certain other steps must have been taken when the tenancy began, in order ensure that the notice is validly served. These are as follows:-
Provision to the tenant of current copies of the Gas Safety Certificate (to be provided with the letting information or at the viewing) and the Energy Performance Certificate (to be provided before the tenant moves into the property).
Provision to the tenant of the latest available version (at the time of letting or tenancy renewal) of the government booklet ‘How to Rent: The Checklist for Renting in England’.
Ensuring that any deposit taken from the tenant is protected under the Tenancy Deposit Scheme, and ensure that the correct documentation is provided to the tenant – namely a valid S213 notice.
It is important that the landlord has evidence of having complied with the above steps, for example using recorded delivery or asking the tenant to provide a signature confirming receipt, if given in person.
Thirdly, a landlord may not serve a S21 notice if:
the tenant has already made a complaint about a repair issue;
an adequate response has not been provided by the landlord; and
the tenant has then contacted the council and an Improvement Notice has been issued.
Once an Improvement Notice has been served, a S21 notice cannot be served in the following 6 months. If a repair complaint has been made but an Improvement Notice not issued, it is possible to serve a notice, but if an Improvement Notice is then issued before actual possession takes place, the S21 notice becomes invalid and possession will not be granted by a court. For this reason, it is prudent for a landlord to deal with any genuine repair complaints prior to issuing a S21 notice, to avoid prolonging the matter, and potentially incurring costs.
There are some exceptions to this rule however, these being if the property is up for sale; if it is subject to repossession proceedings; or if it can be shown that the tenant caused the damage which is the subject of the complaint.
Finally, in addition to the ‘dos and don’ts’, there are some changes to the notice periods and timings which apply when a S21 notice is served which are useful to know:-
A notice cannot be served in the first 4 months of a tenancy (not including renewal tenancies).
If the tenancy is periodic, the notice does not need to expire on the last day of a period – the notice period is simply 2 months. However in this case, any overpaid rent relating to the remainder of the period, where the tenant will no longer be in occupation, must be paid back to the tenant.
Once a notice has been served, the landlord has 6 months in which to make an application for possession, failing which a new S21 notice must be served.
Article author: Sophie Greensill, Dispute Resolution & Insolvency Litigation Executive.
This article sets out some of the basic changes to the legislation. For specific advice concerning individual situations please contact Nick Clarke at Aaron & Partners LLP.
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