Unfortunately, there are at the moment a lot more landlords beginning or planning to sell up than is usual. There are several reasons for this but mainly it’s the loss of the tax allowance for mortgage costs, the increase in interest rates, and the concern that we will need to spend a lot of money on our properties to reach the C-level Energy Performance rating which government have said that they will enforce at some time.
There is one big reason that many landlords have decided to leave the sector and that is the threatened loss of No fault evictions which were introduced in the Housing Act 1988 under Section 21 and commonly known as Section 21 Notices. Even those landlords who have never used this legislation to remove a tenant want to know that it is there should they ever need to use it. Because we all know that circumstances change and there may come a time when we need to stop being landlords for many reasons and no one wants to face expensive and stressful legal action in order to remove a tenant so that a property can be sold with vacant possession. There is of course an option to sell with a tenant in place but that usually means a discounted sale price even when there is a great tenant in place – this is a pity for so many reasons.
Section 21 Will be Removed
The clock is ticking because there is no doubt that Section 21 will be removed under the Renters Reform Bill and most landlords realise that the time scale for gaining vacant possession under section 21 is usually around 5-8 months, despite the notice period only being 2 months. There is often no viable option but to use section 21 because we haven’t got grounds under Section 8, at least not mandatory grounds where the judge must give us possession and the tenant has no defence like 8 weeks or more rent arrears. Section 8 can also be very stressful and there must be a court hearing because we are “accusing” the tenant of an act which gives us the right to remove them from the property and therefore they have the legal right to defend themselves.
Whether you know at this time that you do intend to evict your tenant or you just want to be sure that you are in a position to move quickly should section 21 be removed, there are some things that many landlords get wrong and these cause the loss of section 21 or at the very least a longer delay than necessary which could be crucial if the Renters Reform Bill (RRB) removes Section 21 once it becomes an Act of parliament. Regardless of eviction, we all need to get our documents in order and do as the law requires to protect ourselves from any other “surprises” that might be introduced in the RRB which we will no doubt see this year. I’m going to go through what the law requires us to do and the common mistakes/misunderstandings and if you already know and do all of this that’s great but if you don’t you’ve got time, in most cases to put things in order.
Get the Right Advice if Evicting a Tenant
First, a word of warning – Only a Solicitor can provide legal services covered by the Legal Services Act 2007, and this includes, signing Section 21 or 8 Notices, representing us in court when we do not attend and/or dealing with the court on our behalf. An eviction specialist who is not a qualified solicitor can give us some support and help us to fill in the document, and, even accompany us to court but only as a McKenzie Friend who are unable to speak on our behalf and is only there to support us if the judge has allowed them to attend.
This recent case makes this very clear and it’s important when we employ the services of an eviction specialist that they only give the support the law allows unless they are qualified solicitors because anything more risks a defence by the tenant and may delay the granting of an Order for Possession even when our case is solid.
“The court heard that, in the possession proceedings, Doble and her company drafted the claim form and particulars of claim, checked the bundle to be sent to the court, posted the claim form, particulars of claims, enclosures and cover letter. Dobie also paid the £355 court fee from the client account and ensured that documents were drafted and filed in line with civil procedure rules.
But the company had not gone on the record as representatives of Persey, had not signed the claim form or particulars of truth and had not used the online claims process. In addition, the company’s letterhead had not been used for the cover letter.
Cavanagh said the actions of Doble and her company, both in relation to the claim form and particulars of claim and in relation to a reply and defence to counterclaim, amounted to the conduct of litigation, and so related to reserved legal activities under the 2007 act.
Doble and her company went ‘far beyond’ clerical or mechanical help, giving ‘full assistance’ to Persey, including drafting all the documents required, instructing counsel, making a court payment and corresponding with the other side.”
Serving a Valid Section 21
So many landlords, and even letting agents, get this wrong. I will go through each item.
BEFORE we can serve a Section 21 Notice Form 6A here Assured tenancy forms – GOV.UK (www.gov.uk) This cannot be used in Wales.
You cannot serve a valid Section 21 notice if any of the following apply:
- it’s less than 4 months since the tenancy started
- the notice period in the S21 ends before the fixed term has ended unless there is a break clause in the contract
- the property is categorised as a House in Multi-Occupation (HMO) and does not have an HMO licence from the council. This will not only prevent you from serving a valid section 21 it also carries a fine of up to £20,000 and the potential for your tenants to claim back up to 12 months’ rent in a Rent Repayment Order. Keep your eye on your local authority website because this also applies to Additional Licensing of HMO which can be introduced by an individual council to cover HMO which are too small to be covered by Mandatory licensing
- the tenancy started after April 2007, and you have not registered the tenants’ deposit in one of the government-approved Deposit Protection Schemes and given the tenant the prescribed documents within 30 days of taking the deposit:
- the tenancy started after October 2015, and you have not used form 6a or a letter with all the same information on it
- the council has served an improvement notice on the property in the last 6 months. This applies until you have satisfied the Notice
- the council has served a notice in the last 6 months that says it will do emergency works on the property. This also applies until you have satisfied the Notice
you have not repaid any unlawful fees or deposits that you charged the tenant – details here Tenant Fees Act 2019 Some landlords are holding more than the equivalent of 5 weeks’ deposit and the extra amount must be returned to the tenant before you serve S21. If you have charged any of the fees prohibited in the Act they must be returned before you can serve a valid notice.
Qualifying Documents which need to be given to the tenant at the correct time before a valid Section 21 can be used
You also cannot use a Section 21 notice if you have not given the tenants copies of:
- the property’s Energy Performance Certificate This should have been given at viewing or at least before the tenancy was signed but so far there hasn’t been a case based on the fact that this was given to a tenant at a later date – try not to become that case but if you haven’t already done so give the tenant a copy before serving the S21. They are free to download here Find an energy certificate – GOV.UK (www.gov.uk) England, Scotland and Wales have separate registers at that link;
- the government’s ‘How to rent’ guide This must be given in hard copy and attached to an email but not a link before the contract is signed. There also hasn’t yet been a case using the late production of this document as a defence so far but it’s important to always download the document on the day because they change without notice, we are waiting for a new addition now, and you must provide the latest version at the time of signing; and
- a current gas safety certificate for the property, if gas is installed. This is the one for which there has been a long drawn out case and many people misunderstand the results of that case.
I am going to let the highly respected and knowledgeable lawyer who writes the Nearly Legal blog, Giles Peaker, explain:
“In my comments to our post on the Court of Appeal judgment in Trecarrell House Limited v Rouncefield (2020) EWCA Civ 760, I pointed out that the judgment only addressed late provision of a gas safety certificate for the period covering the start of the tenancy, not what happened if there was no current gas safety certificate at the start of the tenancy. That, I speculated, would quite possibly still make service of a section 21 notice impossible, without possibility of redemption.
And in this County Court appeal judgment, by HHJ Bloom, who certainly knows her housing law, so it has come to pass.”
There was a lot of excitement in landlord circles when the original case was won by the landlord in the Supreme Court BUT what wasn’t understood at the time was that the landlord in the case had a gas safety certificate to cover each year of the tenancy including the start date and had simply not provided the tenant with a copy before the contract was signed and within 28 days of each inspection being carried out. The landlord took a very long time and expense to win this case because we are not only dealing with the requirements under Section 21 we also must meet the legal requirements of the Gas Safety (Installation and Use) Regulations 1998 here The Gas Safety (Installation and Use) Regulations 1998 (legislation.gov.uk) and this is where we are required to provide a copy of the current Gas Safety Certificate to a prospective tenant before signing.
In a nutshell, as things stand you can still provide copies of all the certificates to cover the whole of the tenancy before you serve a section 21 but if you have not got them all you cannot serve a valid section 21.
Valid Grounds for Section 8 Evictions
Many landlords will find themselves unable to use Section 21 and they will be forced to use Section 8, which means that there must be valid and provable grounds for serving the Notice.
Ground 1. The landlord requires the property in order to use it as their main residence. This ground can only be used if the landlord used the property as their main residence prior to the tenancy beginning.
Ground 2. The mortgage lender on the property has served notice to foreclose. In this case, the mortgage in question has to predate the start of the tenancy.
Ground 3. The property was previously used as a holiday let and is required to return to the status of a holiday let.
Ground 4. The property is being let by an educational institution and is now required by students of the educational institution. Written notice that this may happen must be served before the tenancy begins.
Ground 5. The property is owned by a religious body and they require possession for a member of their church i.e. a Minister of Religion.
Ground 6. The landlord wants to demolish and reconstruct or redevelop all or part of the property. The tenant needs to have refused to live in all or part of the property while work is carried out for this ground to be feasible.
Ground 7. The current tenant is not named on the original tenancy agreement but was living with the tenant. The landlord must serve a Section 8 notice within 12 months of the death of the named tenant.
Ground 8. The tenant has failed to pay more than 8 weeks rent in the case of weekly payments, 2 months in the case of monthly payments or 1 quarter in the case of quarterly payments. This ground can be used on day two of month 2 if the rent is due in advance and has not been paid. No need to wait until the end of the 8 wees/2 months.
Ground 9. Suitable accommodation of the same type and quality has been offered to the tenant and refused. The landlord is required to pay all reasonable removal costs if possession is granted.
Ground 10. The rent is in arrears but by no more than 8 weeks in the case of weekly payments, 2 months in the case of monthly payments and 1 quarter in the case of quarterly payments. Often this is used with ground 8.
Ground 11. The tenant is repeatedly late with payments or repeatedly fails to pay their rent until prompted by the landlord. This is also often used with ground 8 and or ground 10.
Ground 12. The tenant has breached any of the terms listed in the tenancy agreement.
Ground 13. The tenant has neglected or damaged the property, or they have sublet the property to another individual who has neglected or damaged the property.
Ground 14. The tenant is considered a nuisance to neighbours or other tenants and has received complaints concerning their conduct.
Ground 15. The furniture listed on the property inventory has been misused, damaged, broken or sold by the tenant or any individual living with them.
Ground 16. The property was let to the tenant as a condition of their employment but the employment has now come to an end.
Ground 17. The property was let on the basis of false information provided by the tenant or one of their referees/ guarantors.
The first 8 grounds are mandatory where the judge must grant possession if the landlord proves that the ground is valid.
Different amounts of notice apply to each ground used and over the last few years we have seen ‘No eviction’ periods put in place – always check at the time. The exact wording which appears in the legislation must be used in the Section 8 in order to be valid – the wording above is not that wording. Please Follow the link above.
Notice can be served by posting from two separate post offices and obtaining Proof of posting which is free or by hand to the tenant or through the door. Its always best to have an independent witness, a letting agent is perfect, because the easiest way to avoid eviction is to say that they didn’t receive the Notice before the heard from the Court.
There is still hope that the Renters Reform Bill will be more balanced than we fear and that interests rates will settle down but whether you want to evict or simply want to be a legally compliant landlord who is in a position to use the law to remove a tenant if necessary its worth getting everything in order.