Landlords can take steps to evict a tenant under an assured shorthold tenancy by using a section 21 notice without having to give any reason or prove that their tenant is at fault. Whilst this might seem like a favourable outcome for the landlord, there are a number of pitfalls that you should be aware of before you prepare a section 21 notice.
Here are some of them.
You can’t send a section 21 notice to your tenant within the first four months of their assured shorthold tenancy if it started after 1 October 2015. If the assured shorthold tenancy is within its fixed term, such 6 or 12 months, the section 21 notice cannot expire before the end of that fixed term. Landlords should seek advice to make sure they comply with these timeframes so the section 21 notice is sent to the tenant at the right time, with a valid expiry date.
Different forms of notice
If the tenancy started before 1 October 2015, you need to consider whether you are giving a section 21(1) or section 21(4) notice. This depends on whether the tenancy is for a fixed or periodic term. A tenancy will have converted from a fixed term to a periodic term if the fixed term has expired and the tenancy continues to ‘run on’. If an incorrect date to vacate is given in a periodic tenancy section 21(4) notice, for example because you are uncertain of the date when the complete period of the tenancy expires, your tenant will be allowed to stay in the property until a valid notice is provided. You may however be able to rely on section 21(4ZA) which removes the need to specify the last day of a period for a dwelling house (the tenant’s home as opposed to business premises) in England.
If the tenancy started before 1 October 2015, you could choose to use the new prescribed form section 21 notice, known as Form 6a. Using Form 6a means you do not need to specify the last date of the tenancy period. In these circumstances, which form of section 21 notice you should use depends on whether you wish to rely on the catch all provisions in section 21(4ZA)..
New form of notice
If the tenancy started after 1 October 2015, you must use the new prescribed Form 6a. You must also have:
- Provided the tenant with:
i) An EPC
ii) A gas safety certificate
iii) Specific information about the rights and responsibilities of the landlord and tenant under the tenancy and
- Complied with the tenancy deposit protection legislation requiring a deposit to be placed within a Tenant Deposit Scheme.
You cannot evict your tenant using a section 21 notice for 6 months if:
- Your tenant has made a genuine complaint about the condition of their property that has not been addressed by you within 14 days and
- Their complaint has been verified and notice has been served on you by the local authority
You’ll need to complete the repairs before you can use a section 21 notice to start the eviction process.
Sending your tenant a valid section 21 notice means you can start standard or accelerated court proceedings to obtain possession if the tenant fails to vacate by the date specified in the notice. There are set periods for you to start these court proceedings and you should take advice from a solicitor if you’re not sure how they affect you.
If you use the accelerated process, which is only available for landlords who use section 21 notices, the tenant will have 14 days to respond to your application for possession. A judge will then either make a possession order or diarise a court hearing. If you use accelerated court proceedings to obtain possession of the property, you will need to collect any rent arrears separately. If the rent arrears are less than £10,000, your legal costs spent on recovering the arrears will not be recoverable from your tenant unless there is something in your agreement with the tenant which states otherwise.
In comparison, the standard process takes between two to three months from starting the court claim to the court diarising the possession hearing. At the hearing, a judge will either make a possession order or arrange a further hearing if it appears that there is a substantial dispute between you and your tenant. If you use this procedure, you can however obtain both possession and claim rent arrears as part of the same court action and some fixed costs.
If the tenant fails to vacate the property after the date on which the court sets for eviction in a Possession Order, you are entitled to apply to the court for a Warrant of Possession. When the court makes the Warrant, the tenant will be sent an eviction notice giving a date on which they must leave the property. If the tenant still fails to vacate the property, you can take steps to instruct a bailiff to manage with the eviction.
If your property is in Wales, you’ll need to follow different procedures.
Our Dispute Resolution team can help you avoid the pitfalls of bringing a tenancy to an end.
Call us now on 0117 926 4121 or make a Free Online Enquiry. We’re happy to help.