Horsted Law - Landlord and Tenant Law Specialists

Frequently Asked Questions

Residential Landlord & Tenant Litigation

Section 21

Do I need to have a reason to serve my tenant with a section 21 notice?

No. A landlord can end a tenancy at the end of the fixed term by using a section 21 notice or by invoking the break clause within the tenancy agreement (if applicable) without providing a reason. This is why the section 21 route is commonly known as a ‘no fault eviction’. 

What are the legal requirements I need to comply with/consider before serving a 21 notice?
  1. You must ensure that you have complied with the deposit rules, i.e. provided your tenant with the prescribed information and deposit certificate within 30 days of the receipt of deposit.
  2. You must ensure that you have given the tenant a copy of the then valid gas safety certificate at the commencement of the tenancy and any subsequent renewal certificates. If you have not complied, you can issue your tenant with the said certificates prior to the service of any section 21 notice. Failure to do this will render your section 21 notice invalid.
  3. You must ensure that you have provided your tenant with a copy of the Government’s How to Rent Guide that was applicable at the commencement of the tenancy, when it was renewed (if the document has been updated) and the applicable version when the tenancy became periodic. If you have not complied, you can issue these documents prior to the service of any section 21 notice.
  4. You must provide the tenant with a copy of the EPC certificate at the commencement of the tenancy.
  5. You must ensure that the property is licensed (if applicable)
  6. You cannot issue a section 21 notice if the council has issued an improvement notice or notice requiring emergency remedial action within the last 6 months.
  7. You must ensure that any deposit/fees collected from the tenant complies with the Tenant Fees Act 2019.
What is the notice period for a section 21 notice?

The notice period is 2 months from the deemed date of service

What is the lifespan of a section 21 notice?

A section 21 notice is valid for 6 months from the date the notice is given to your tenant. It is important to note that you cannot serve a section 21 notice in the first 4 months of the tenancy or use a section 21 notice to end the tenancy before the end of the fixed term unless there is a break clause within the tenancy that allows it to be terminated early. 

Do I need to attend a hearing for a section 21 claim?

An accelerated claim (i.e., section 21 possession proceedings) is usually decided by the court on paper. However, there may be instances where the Judge may list the claim for a possession hearing; perhaps for further clarification or where the tenant has filed a defence. .

Can I obtain a money judgment order under section 21?

No, a possession claim brought under section 21 is for possession only. You can issue a separate money claim against your tenant for rent arrears or issue the possession claim manually to include a claim for rent arrears. 

Section 8 (rent arrears)

What are the rent arrears grounds for possession?

The grounds for possession are 8, 10 and 11. Ground 8 is a mandatory ground which means that if the court is satisfied that this ground has been met, the court should award the landlord a possession order. Grounds 10 and 11 still relate to arrears and late payment of rent but are discretionary grounds, which means the court will only grant a possession order if it considers it reasonable to do so. We always recommend that grounds 10 and 11 are pleaded in conjunction with ground 8 on a section 8 notice. This is because if your tenant brings the arrears below the mandatory ground threshold prior to, or on the day of the hearing, you can rely on discretionary grounds 10 and 11, although this does not guarantee a possession order. 

How long do I need to wait before issuing my tenant with a section 8 notice?

To rely on ground 8:

For tenancies payable monthly, your tenant must be at least 2 months in arrears; for weekly payments, at least 8 weeks in arrears; for quarterly payments, at least one quarter of rent must be outstanding for more than 3 months; and for yearly payments, at least 3 months’ rent must be outstanding for more than 3 months.  

Does the possession date on my rent arrears section 8 notice matter?

Yes, it is important that you allow clear 14 days from the deemed date of service, or you risk the section 8 notice being invalid. We always recommend that you allow an extra day to be on the safe side. 

How do I issue my claim for possession?

Claims for rent arrears are usually issued via the court’s PCOL (Possession Claim Online) system. Once the claim is submitted via this portal, you will be allocated a court and a hearing date by return. 

How do I prepare for the possession hearing?

It is highly recommended that you instruct a court advocate to represent you at the hearing. At Horsted Law, we will always arrange for an advocate to represent you and we will ensure that all relevant documents are filed at court ahead of the hearing.  We also recommend that the landlord or managing agent attends the hearing with an up-to-date rent statement.  

What happens if my tenant files a defence and/or counterclaim before or at the hearing?

It is important to note that even if your tenant does not file a defence and/or counterclaim prior to the hearing, they can still do this at the hearing especially if they are represented by a duty solicitor. If the court finds that your tenant has reasonable grounds for defending the possession claim and/or for bringing the counterclaim, the claim is likely to be adjourned with further directions ordered and you may not obtain a possession order at that possession hearing. Section 8 claims can be defended on the basis of disrepair so you must ensure that you have complied with your repairing obligations before issuing a possession claim against your tenant. At Horsted Law, our team of specialist lawyers can advise you on how to deal with defended matters.  

Bailiffs

When do I need to apply for a bailiff?

A possession order will specify the possession date I.e., the date your tenant must leave the property. If they remain in the property after the possession date, you can apply for a warrant for possession of land (county court bailiff).  

How soon can I get a county court bailiff appointment date?

The courts are currently facing severe backlogs so it may take some time to be given a bailiff appointment date. You may be looking at up to 8 weeks or more depending on the court. You can opt for a High Court enforcement officer if you require a quicker eviction. 

Do I need to notify my tenant of the bailiff appointment date?

You don’t need to as the court will send your tenant an eviction notice with the bailiff appointment date. 

High Court Enforcement Officer or a County Court Bailiff?

The High Court enforcement route is much quicker than the county court. However, you will, first, need to apply for permission from the county court to transfer the case to the High court for enforcement purposes. A High court enforcement officer can deal with the process of obtaining a writ of possession and subsequently carrying out the eviction. It is important to note that although the High court enforcement process is significantly quicker than the county court process, it is considerably more expensive due to the shorter wait time. It is therefore worth considering the High court option if you require a quick eviction, especially when the arrears are very high. 

What is the latest state of the Renters Reform Bill and when will it become law?

Frankly, nobody knows! The Bill had its second reading and has gone to the consultation phase having taken four years to do that and now there has been a realisation that the changes are going to have a direct effect on the ability of the Courts to deal with the changes.

The Bill has therefore been placed on temporary hold until the Courts can get operationally to a place where they can cope with the increased workload.

No one knows how long this will take having regard to the fact that it was not that long ago that Courts were being closed and amalgamated due to cut backs which in itself created massive problems for the Courts.

There’s no doubt it will become law at some stage but whether in the format as it currently is or with any changes from a new government, it remains to be seen but it was directly referred to in the King’s Speech at the opening of Parliament so it’s clearly still alive

Watch this space!