In this article, we’ll find out how to serve Section 21 Notice, since just one wrong form could put your no-fault eviction back a few months.
When would you need a Section 21 notice?
In England and Wales, Section 21 can be used to end Assured Shorthold Tenancies (AST) at the end of a fixed-term tenancy or during a periodic tenancy, where there is no fixed end date.
The process is one that landlords do not need to prove that the tenant has been in breach of their contract. A judge must grant your request as long as the notice is validly served.
How to serve a Section 21 notice in England and Wales
- You must serve a Section 21 notice at least two months before you want to end the tenancy – assuming you collect the rent weekly or monthly. Remember you must honour any agreed fixed term, during which you cannot use Section 21 to regain possession. For tenancies that began on or after 1 October 2015 in England, you cannot serve Section 21 in the first four months of a tenancy.
- Use a properly drafted Section 21 notice. You must serve the notice in writing. Also, in England, for tenancies that began on or after 1 October 2015, you must use a prescribed form known as Form 6a. For older tenancies in England, and all tenancies in Wales, there is no prescribed form.
- You may serve the notice in person, by hand, to the tenant. Preferably, make sure that a witness is present, who can sign a statement of truth. This way, you have evidence that you served the notice correctly. Also, the tenant cannot refuse to accept delivery. Alternatively, you may post the notice. If you choose to post the notice always request a certificate of posting. Notices physically left at the address are deemed received the next working day. Notices sent by first class post are deemed received two working days after posting.
It is advisable not to use recorded delivery, as the tenant may refuse delivery.
When can’t you use a Section 21 notice?
You cannot use a Section 21 notice if any of the following apply:
- The tenancy is not an AST.
- The date you wish the tenancy to end is fewer than six months since the initial tenancy started.
- The fixed term has not ended unless there’s a break clause in the contract that allows you to do this.
- The property is categorised as a licensable house in multiple occupation (according to the HMO Legislation) and does not have a HMO licence from the council.
- The council has served an improvement notice on the property in the past six months.
- The council has served a notice in the last six months that says it will do emergency works on the property.
- You have not fully complied with the tenancy deposit protection regulations requirements.
- The property is in Wales and you are not registered and/or do not have a landlord licence with Rent Smart Wales.
In England, you also cannot serve a Section 21 notice if you have not given the tenants copies of:
- A current gas safety record for the property (where required).
- The government’s ‘How to Rent’ guide; and
- Made available the property’s Energy Performance Certificate before creating the tenancy (where an EPC was legally required at the time of marketing).
In London recently, a possession order was refused because a gas safety certificate was not issued before the tenancy started. As the legislation is currently drafted, the judge found that a landlord cannot rectify this by issuing the certificate at a later date. This was upheld at the Court of Appeal. This ruling does not hold outside London, but a similar ruling could be made elsewhere. Landlords should ensure that they issue the gas safety certificate to new tenants before they are given the keys.
When creating a new AST in England it is essential to clearly record that the tenants were given a copy of ‘How to Rent’, an EPC (where required) and a valid gas safety certificate prior to the tenancy beginning.
What if tenants don’t leave by the end date?
A tenant can legally stay in the property even after a notice expires. If the tenant doesn’t vacate the property by the end of the notice period, you can apply to the county court to start proceedings to regain possession. Proceedings must begin in a court that covers the location of the property.
The Section 21 process may use the ‘accelerated’ procedure, which does not normally involve a court hearing and is therefore relatively straightforward and inexpensive. The court will make its decision by considering the documents provided by the landlord and the tenant unless it considers a hearing is required. Applications for possession using the accelerated procedure cost £355.
To make an accelerated claim:
- You need to apply to the county court using an N5B form. There are separate forms for England and Wales.
- You need to supply the court with relevant paperwork, including copies of the tenancy agreement, notice(s) sent to the occupier and any other relevant documents (such as letters).
- Your tenants must receive a copy of your application by the court. They then have 14 days to challenge your application.
- If all the paperwork is in order, the court will usually give tenants two weeks to leave but can allow up to six weeks.
- The most common reason for the court to reject possession claims is that a letting agent signed them. Only the landlord personally, or their solicitor, can sign the court papers. A letting agent can help to draft the paperwork but cannot sign on the landlord’s behalf. Otherwise, you can properly draft a power of attorney and produce it to the court.
- A landlord has the right to represent themselves but may prefer to instruct a solicitor. If you do choose to represent yourself, we would advise getting some legal advice first.
- Make sure any solicitor you instruct has a long experience in this area of work.
What if my tenant is in breach of the tenancy?
If your tenants are in breach of the tenancy and you want to remove them more on this basis, you may choose to use a Section 8 notice. However, with a Section 8 notice, you must prove to the court’s satisfaction that a breach of contract has occurred. Unlike Section 21 counterclaims are possible and could hold up legal proceedings. Overall, this route can be more complex and costly than a valid Section 21 notice.
Bear in mind that with Section 21, landlords cannot claim any monies, for example, if the tenant is in rent arrears. If you wish to claim for debts as part of the possession claim, you must use a Section 8 notice.
For added security, some opt to issue both a Section 21 and a Section 8 notice at the same time.
Once a possession order has been granted, if your tenants do not leave by the date specified, you can apply for a warrant for possession. A bailiff may serve this, carrying out a court-ordered eviction. This can take four to ten weeks for a county court bailiff. A county court ‘warrant of possession’ costs £121.