We recently exhibited at The Landlords Expo in the South West. As a Bristol based Letting Agent, specialising in property management we believe that it is important to maintain a high level of knowledge on housing law and practice. Although we both have Degrees in Housing Management, Law and Policies are constantly changing and we pride ourselves on being consistently up-to-date with what’s going on.
Here are some helpful notes taken from James Davies, of 3PB Barristers extremely useful seminar on Section 21 Notices;
Housing ACT 1988
Section 5(1):
“An assured tenancy cannot be bought to an end by the landlord except by obtaining an order of the court in accordance with following provisions”.
Options for ending an Assured shorthold tenancy:
· Section 8 Notice: Landlord has to establish one of the Grounds under Schedule 2 of the Act.
· Section 21 Notice: Theoretically more straightforward. If done correctly then the court has to order possession.
Deference’s:
A defence to a section 21 Notice will typically involve one or more of the following:
Landlord was not entitled to serve the Notice: failure to comply with TDS or HMO
Wrong type of Notice: there are two provisions under which Notice can be given
Wrong information on Notice: fails to identify landlord, property or tenants
Wrong date given for requiring possession: applies to Section 21 (4) notices
Insufficient notice: at least two months from date of service is required
Serviced denied; “I’ve never seen it before”
Tenancy Deposit Scheme:
No Section 21 Notice may be given at a time when:
A) The Deposit is not being held in a scheme
Or
B) The initial requirements of a scheme have not been complied
Or
C) The prescribed information has not been provided.
HMO’s:
Section 75(1):
“No section 21 notice may be given in relation to a shorthold tenancy of a part of an unlicensed HMO so long as it remains such an HMO.”
Which type of Section 21 Notice:
Section 21(1)b)- for recovering possession at the end of a fixed term.
Section 21(4)a)- for recovering possession during a periodic tenancy.
Neither has a prescribed form but both must contain certain prescribed information.
Section 21(1)b)
Available where the tenancy is for a fixed term:
“ The landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice in writing stating that he requires possession of the dwelling- house.”
Section 21(2)
“A notice under paragraph (b) of the subsection (1) above may be given before or on the day on which the tenancy comes to an end; and that subsection shall have effect notwithstanding that on the coming to an end of the fixed term tenancy a statutory periodic tenancy arises.”
Requirements of Notice:
· Has to be given by the landlord
· Has to be in writing
· Has to give at least two months notice that Possession is required.
Section 21(4)
The notice must be in writing and state that after a date specified in the notice, being the last day of the period of the tenancy and not earlier than two months after the date notice was given, possession of the tenancy is required by virtue of this section.
Insufficient Notice
At least two months’ notice is required running from the date of service.
The Court has no power to shorten/abridge the time required for service. If not enough notice is given then section 21 is invalid.
Service:
There is no statutory provision allowing service to be deemed on posting or even leaving at the property. It is receipt of the notice which is what needs to be proved.
Order of preference:
· Personal service
· Leaving the property
· Registered post/signed for delivery
· Normal Post
Commencing proceedings:
· Civil procedure Rules part 44 gives two options:
· Normal Possession Claim: a hearing will be fixed, the claim can rely on a section 8 Notice in addition to section 21, a money claim can be included for arrears.
Accelerated Possession Claims:
· CPR 55 Part II- the default is an order without hearing
· Only applies where the tenancy is an Assured Shorthold Tenancy arising out of a written agreement
· Possession is sought only on the basis of section 21
· No other claim (i.e for arrears) is sought
Obtaining Possession:
· Section 69 Housing Act 1980 means the court can delay possession only by up to six weeks and only in the case of extreme hardship.
· With AST’s there is a further exception under section 21(5) - the order cannot take effect earlier than six months after the beginning of the original tenancy.
These notes are intended as general guidelines only. They are not a substitute for detailed professional assistance. No liability is accepted for any act or omission arising as a consequence of these notes.
