Our thanks to all who took part in our recent webinar on the eviction of private tenants. Our guest presenter, Yezdan Izzet from Bolt Burdon, answers more of the questions raised.
There were also many questions asked relating to tenant deposits, which we will cover in a future article, also written by Yezdan.
What happens when a section 8 and section 21 notices have been served and the tenant continues to claim repairs in the premises? When can you serve a fresh S8 and S21?
Section 8 Notice: If the landlord has served a section 8 notice based on some breach of the terms of the tenancy agreement by the tenant, and the tenant is successful in raising a defence/counterclaim on the basis of disrepair of the property, the effect of such defence/counterclaim could have the effect of defeating the landlord’s grounds for possession. By way of example, if the landlord’s claim is for rent arrears and the tenant is awarded damages for disrepair, this could be off-set against the rent arrears and can affect the landlord’s right to recover possession if the amount of the arrears falls below the amount required to satisfy a mandatory ground for possession.
Section 21 Notice: Since the Deregulation Act 2015 if the tenant makes a legitimate complaint about the disrepair or condition of the property and the landlord does not provide an adequate response within 14 days this can invalidate any 21 notice served by the landlord. At present this only applies to tenancies granted after 1 October 2015. However, from 1 October 2018 it will apply to all ASTs. The purpose is to prevent rogue landlords from taking retaliatory eviction against tenants and give some security to tenants who may otherwise feel unable to complain about poor conditions of their property.
If the tenant is concerned about the condition of the property it can complain to the Local Authority and the Local Authority may serve an appropriate improvement notice on the landlord. Such notice can prevent the landlord from being able to serve a section 21 notice for at least 6 months thereafter unless the notice has been revoked or disposed of in some other way.
I have a question about serving S21 notice where there is a periodic tenancy.
You said that you had to make sure the notice period ended on the last day of a period of the tenancy.
I am not sure this is correct for statutory periodic tenancies following the case of Spencer v Taylor. The court clarified that two months’ notice had to be given but that it didn’t have to end on the last day of a period of the tenancy. I think this only applies to contractual periodic tenancies. Please can you clarify.
If the tenancy is a contractual periodic tenancy from the start (as opposed to a statutory periodic tenancy which arises once the fixed term of a tenancy comes to an end) and the tenancy was granted before 1 October 2015 the termination date in the section 21 notice must expire on the last day of a tenancy period. However, the landlord does not have to specify a calendar date in the notice and can rely on a ‘saving provision’ e.g. “...I give you notice that I require possession of the property know as [address of property] after the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice”.
On the other hand, if the tenancy is a statutory periodic tenancy (where the fixed term of the tenancy has ended and the tenant has remained in occupation) there is no requirement for the notice to end on the last day of a period, Spencer v Taylor 2013.
If you are dealing with an AST granted after 1 October 2015 (be it a contractual periodic tenancy or a statutory periodic tenancy) the notice must be in prescribed form (Form 6A) and does not need to specify the last day of a period of the tenancy as the date specified in the notice. From 1 October 2018 this will apply retrospectively to all ASTs.
Can you explain what's happening to section 21 and ASTs from October 2018
The Deregulation Act 2015 introduced new rules which restrict the landlord’s ability to serve a section 21 notice. This only applies to properties in England and at present only applies to ASTs granted after 1 October 2015. However, from 1 October 2018 it will apply retrospectively to all ASTs.
The main changes can be summarised as follows:
- Landlords will need to use the prescribed notice (Form 6A)
- The minimum notice period is 2 months and the notice does not have to expire on a particular day.
- Landlords will not be able to serve a section 21 notice until at least 4 months into the period of the tenancy (in the case of a renewal tenancy the 4 month period will start from the term of the original tenancy). It used to be the case that a landlord could serve a section 21 notice at the very start of the tenancy, even if that tenancy was for a 12 month period or longer, letting the tenant know that once the fixed term is up the landlord will rely on that notice to recover possession. Quite often the section 21 notice would have been attached to the AST. You can no longer do this.
- Section 21 notices will have a life span of 6 months, which means that if you have not issued a claim within 6 months of the date on which the notice is given you will need to serve a fresh notice and wait a further 2 months before issuing possession proceedings.
- The landlord must provide the tenant with (i) a Gas Safety certificate; (ii) Government Booklet on How to Rent, and (iii) an Energy Performance Certificate before it can serve a section 21 notice.
- Protection for tenants against retaliatory eviction where a legitimate complaint has been raised about the disrepair of the property (see question 3).
Is the 6-month period to apply to court from service of the section 21 notice or is it from when the notice ended?
Pursuant to section 21(4D) of the Housing Act 1988 a section 21 notice served in respect of a tenancy granted after 1 October 2015 will only be valid for six months from the date on which the notice is given.
When sending notice to tenant is it to be served to tenant only named on tenancy or all adults in the home
Notice should be served on the named tenant and it would be prudent to consider serving notices on any other named occupants or specifically to ‘the occupants’ as well. The type of notice which will be required for each party should be carefully considered based on the facts of the matter.
Do you need to issue the EPC with Section 21 for a tenancy in multi-let properties?
Before you can serve a section 21 notice to terminate any AST the landlord will need to comply with its legal obligations which includes the requirement to provide the tenant with an EPC. At the moment this applies to tenancies granted after 1 October 2015.
If you have not registered with the local authority for selective licence when you grant the tenancy, is it ok to register during the tenancy and prior to issue of section 21 notice?
It is prudent to check with the relevant authority as to what it’s specific licensing requirements are. If a selective licence is required and has not been obtained this would prevent you from being able to serve a section 21 notice. In that instance, it would be advisable to seek a licence retrospectively. Alternatively, if the tenant is in breach of the tenancy agreement you could consider serving a section 8 notice instead.
I have served a Section 8 and a Section 21 (1) and (4) to a tenant who is in arrears. What do I do next to obtain possession and rent?
All residential occupiers are afforded protection under the Protection from Eviction Act 1977 and cannot be evicted without a Possession Order by the Court. If your tenant has failed to vacate the property on expiry of the notice(s), you will need to issue county court proceedings for possession of the property. If you are confident that the notices served are valid you will need to decide which notice you wish to rely upon and then issue the appropriate possession claim.
Do bear in mind that tenants are more likely to raise a defence to a section 8 notice. As such, if your priority is to recover possession and you are happy to seek a possession order only you may wish to rely upon your section 21 notice and bring a separate money claim for the arrears.
There are three possible avenues to bringing a possession claim:
- If there are substantial rent arrears and you are confident that it is unlikely that the tenant will be able to bring the arrears below 2 months (which is the usual threshold for a mandatory order – but this will depend on the frequency that the rent is paid) you can use the Possession Claims Online service (PCOL).
- You can bring an ‘ordinary possession’ claim (whether you are relying on your section 8 notice or your section 21 notice) using Claim Form N1 and the Particulars of Claim N119. Once a possession claim is issued typically the court will list a possession hearing within 8 weeks.
- If you are seeking a possession order only in reliance of your section 21 notice and can satisfy all of the grounds for bringing an ‘accelerated possession’ claim, you can request that the Court consider your claim for possession on paper using Claim Form N5b provided that you can tick all of the relevant boxes and are able to provide the Court with the additional documentation which is set out in the claim form.