We have had many clients contact us recently where they have served a section 21 notice (landlords) or have been served a section 21 notice (tenants).
- When can you issue a Section 21 notice?
- What documents to attached to the Section 21 notice to avoid dispute
- How to ensure there’s no dispute over when the tenant must leave
We have been concerned that our clients have been unaware of the changes introduced by the Deregulation Act 2015. Since 1st October 2015, new provisions came into force in respect of Section 21 notices.
The provisions of the Deregulation Act 2015 and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015 (SI 2015/1725) (“Regulations”) effectively introduced new requirements for serving a valid Section 21 notice.
Form 6A is the new prescribed form of notice. It must be used for any new or replacement tenancy issued after 1st October 2015. Please note that from 1st October 2018 the provisions will apply to all Assured Shorthold Tenancies (ASTs) in existence at that time. An Assured Shorthold Tenancy in England and Wales, is a lease on a residential property that runs for a maximum of six months and gives limited security of tenure.
The regulations require that the tenant must have received the following before the notice can be used:
- a copy of the Energy Performance Certificate.
- a copy of the current gas safety certificate.
- (Applicable to private landlords) a copy of the Department for Communities and Local Governments “How to Rent: the checklist for renting in England”.
In practice we would advise that these are attached to the Section 21 notice in order to avoid dispute.
A section 21 notice cannot be used where:
- The tenant has resided in the property for less than four months.
- The landlord is prevented from retaliatory eviction under section 33 of the DA 2015.
- The landlord has not complied with the requirements under the Regulations (as above).
- The landlord has not protected the tenants deposit under the Tenancy Deposit Scheme.
Just to clarify, for all new ASTs (including periodic tenancies) granted after 1st October 2015 there is no need to worry about the notice having to expire on the last day of a period of the tenancy.
The Tenant is entitled to at least two months’ notice before being required to give up possession of the property. However, if the tenancy started on a periodic basis without any initial fixed term a longer notice period may be required depending on how often the tenant is required to pay rent (for example, if the rent is paid quarterly, you must be given at least three months’ notice, or, if you have a periodic tenancy which is half yearly or annual, you must give at least six months’ notice (which is the maximum)).
Once served landlords have six months from expiry of the notice to act on it for an order for possession.
If an AST is terminated during a period of the tenancy pursuant to a section 21 notice, the tenant will be entitled to a refund of rent relating to those days falling after the tenancy ends if he has paid in advance.
Barrett and Co Tips: Section 21 in Practice
As a landlord you should ask the tenant to sign a copy of the served notice. This will save the dispute of when the notice was served and when the tenant should vacate the premises. This will also save any delay evicting your tenant. Don’t forget if your tenant does not vacate on the agreed date the only way to evict them legally will be to seek an order for possession through the courts.
If you serve the wrong form then that notice will be invalid. You can serve the correct form but time will run from the issue of the correct prescribed form.
Further reading for landlords:
Our litigation partner, Justin has experience in representing landlords and tenants and offers an initial fixed fee consultation to discuss your case and the options available. If you have an issue that may require Court involvement please use the Contact Us button at the top of the article to see our full range of services and to find out more about our litigation team. [email protected]