Section 21 Notice
To serve a valid notice, you must check:
- If a tenancy deposit has been received has it been protected in an authorised scheme within the relevant time. If it has not then you cannot serve a Section 21 notice.
- If the deposit has been protected, has the Prescribed Information under the Scheme been given to the tenant.
- In England and in relation to tenancies which commenced after October 2015, has the tenant been given an energy performance certificate, a valid gas certificate, and the booklet ‘How to rent: The checklist for renting in England’.
- For tenancies which started after October 2015, has the tenant lived at the property for more than four months. For tenancies before October 2015, there is no such requirement.
- In England, is the property in an area where the Landlord needs to be licensed. If it is and you are not licensed then you cannot serve a Section 21 notice.
- In Wales since November 2016, you must be registered with Rent Smart Wales as a landlord.
- Ensure that the appropriate notice is served, giving the required two months notice.
- If the tenant fails to vacate at the end of the notice, then court proceedings will be necessary.
Possession Proceedings After Service Of A Section 21 Notice
- Was the tenancy subject to a written tenancy agreement. If so then can use then you can use the Accelerated Procedure to obtain possession. You cannot make any claims for rent arrears in these proceedings. If you do not have a written agreement, then you can still apply for possession, but you will have to use the normal possession procedure which is set out in the Section 8 Guidance.
- Under the Accelerated Procedure the claim form is completed with the supporting documentation and is sent to the County Court covering the area in which the property is situated, together with the required fee.
- The Court will send the papers to the tenant, who has 14 days from the date of service to file a defense.
- If the tenant files a defense, then the Court will usually fix a date when both parties need to attend at Court, and the court will then decide the case. Sometimes the Court will need to adjourn to another date, if it feels that evidence is needed.
- If the tenant does not file a defence within 14 days , then you can make application for a possession Order. The court will usually also Order that the tenant pays your costs. No court appearance is necessary.
The Section 8 Notice
- Can use this type of notice where there are allegations of breach of the tenancy.
- Grounds are set out in Schedule 2 Housing Act 1988, and includes rent arrears and Anti social behaviour.
- Must give notice in a particular form entitled Form 3 Notice of seeking possession of a property let on an assured tenancy
- The length of notice varies with the Ground relied upon.
- If tenant refuses to leave then you must issue a possession claim
- If you are claiming rent arrears and possession, then you can use the possession claim online service.
- If relying on other grounds, other than rent arrears, you will need to complete a N5 form and deliver it to the county court which covers the area in which the property is situated.
Possession Proceedings After Service Of A Section 8 Notice
- A claim form and the supporting documents must be filed at Court, together with the required court fee. This procedure can also be used where you are claiming on a s21 notice, but there was no written tenancy agreement entered into.
- The court will issue the claim form and will give a hearing date which cannot be less than 28 days away, but can be longer, due to the individual lists of the court.
- The tenant has 14 days from receipt of the claim form to file a defence, but often will be permitted to file a defence up to and even after the first hearing date.
- If there is no defence filed by the time of the first hearing, and the tenant does not raise any defence at this hearing, then the court will make an Order for possession. The Order takes effect usually 14 to 28 days after the hearing, although can be longer.
- If the tenant files a defence, then the matter cannot be determined at the first hearing and the Court will make an Order advising the parties of the steps which are needed before the Court will be able to make a decision on whether possession can be granted. This can be some months away
- The court will consider the evidence and will decide whether or not to make a possession order. If the court makes an Order then the tenant will usually be ordered to pay the landlords costs. If the court refuses to make an Order, then you may be liable for the tenants costs which in a fully contested case can be substantial.