Sep

Lawyer warns of Section 21 confusion

admin

Eviction:

Section 21, the possession procedure in England, which has been a lifeline for landlords with bad tenants since the introduction of the Housing Act 1988, has undergone changes recently which have the potential to stymie an eviction attempt, if the rules are not followed to the letter.

No landlord wants to evict a good rent paying tenant who is looking after the property, but sometimes a limit is reached: rent arrears start to build, damage is occurring which shouldn’t be, or the tenant is causing neighbour problems.

In this situation a landlord owes it to himself and others to commence the eviction process, which, even in the best case scenario, can take around 3 to 6 months.

Danielle Hughes from Kirwans has written that landlords are issuing incorrect Section 21 notices, resulting in thousands of pounds being wasted on aborted possession claims and extensive delays in recovering a property.

In any case, a high proportion of Section 21 claims are thrown out by judges because of technical errors such as incorrectly served or defective notices, no proof of service, deposit protection errors, no property licence where it’s required, the list goes on.

But under the new rules, a new notice (the Form 6A Notice) applies (tenancies commencing post 1st October 2015) and additional tenancy requirements mean that the chances of error are far greater.

Landlords and agents will now struggle to get a successful eviction if they don’t have a rigorous system in place when they set-up new tenancies, making sure that all the documentary requirements have been met.

The old Section 21 notices – Notice Fixed-Term s21(1)(b) and Periodic s21(4)(a) – should still be used for AST tenancy agreements commencing before 1^st October 2015.

The older notices do not require the tenancy to meet the new requirements, so unless you are sure you can fully meet the new requirements, don’t use the new notices (Form 6A) for older tenancies.

Pre – 1 October 2015 Tenancies – Section 21 Requirements

With old tenancies this is what you need:

A valid Section 21 Notice
Proof of Service
A valid Tenancy Agreement
Deposit protection details and proof of service of (s213) notice
Details of any licence requirements – for HMOs or in Selective Licensing areas

Post – 1 October 2015 Tenancies – Section 21 Requirements

A valid Section 21 Notice
Proof of Service
A valid Tenancy Agreement
Deposit protection details and proof of service of (s213) notice
Details of any licence requirements – for HMOs or in Selective Licensing areas
Energy Performance Certificate (EPC) served on tenant
Gas Safety Certificate served on tenant
The current version (at time of tenancy commencement) of the government’s “How to Rent Guide”

From 1^st October 2018, the new Form 6A will apply to all tenancies, new and old, so beware.

When applying to the court for accelerated possession (Court form N5b) or the standard route (Court Form N5 – where a hearing and a money claim are involved) landlords and agents should supply 3 copies of all the above documents to the court.

A further complication which could potentially stymie a claim involving new (Post 1^st October 2015) tenancies, is the new retaliatory eviction legislation. This applies where a tenant has made a report of the need for repairs and maintenance in a property. If the landlord does not respond quickly (within 14 days), and/or the local authority issues an appropriate repair notice, then a valid Section 21 notice cannot be served for 6 months after.

Also, whereas the old section 21 notices were of unlimited duration, the new notices cannot be served within the first 4 months on an AST tenancy, and they now have a limited life of 6 months – you must start a claim within the six months, or start again.

As the current court fee (July 2017) is set at £355, it is not in anyone’s interest to keep paying fees and delay the claim for 2 months while a new notice is served.

The whole process is manageable by landlords and agents so long as they can pay strict attention to the rules and process all documentation correctly – do this and all your possession claims will be successful. You can of course request that the judge to issue an order in damages against the tenant, but whether he or she can pay is another matter?

See also: New Section 21 Rules: www.landlordzone.co.uk/content/new-section-21-rules