No-fault evictions – getting your section 21 Notice right first time (England only)
Obtaining possession of a property by using a Section 21 Notice is a fairly straightforward process… as long as all the preparatory steps are taken. Unlike possession under section 8, there is no second bite of the cherry – if any steps are missed, the section 21 will be invalid. In order to have a good chance for the section 21 to be valid, you need to make sure of the following:
- The Prescribed Information regarding the deposit has been served;
- The section 21 notice is not given within the first four months from the date the tenancy commenced;
- The property has a valid licence (if applicable);
- The council has not served an improvement or emergency works notice on the property in the last 6 months;
- The section 21 notice has been served correctly according to the service clause in your tenancy agreement;
- The section 21 Notice itself has been issued using the correct form (i.e. form 6a if the tenancy started or was renewed after 1st October 2015); and
- That you are even entitled to serve a section21 notice.
Prescribed Information relating to the deposit
Put simply, prescribed information is a specific set of information relating to a tenancy which, pursuant to s.213 of the Housing Act 2004, you are legally obliged to provide to your tenants within 30 days of the landlord or letting agent receiving the deposit. It includes the following information:
- The amount of the deposit
- The address of the property
- The name, address and contact details of the administrator of the tenancy deposit scheme with which the deposit is held
- The name, address and contact details of the landlord and tenants and any third parties who have contributed to the deposit
If the prescribed Information is not served within the first 30 days, s.215 Housing Act 2005 explains that no section 21 notice may be served until the Prescribed Infromation is actually given to the Tenant. So always ensure that the Prescribed Information is served. Otherwise, your section 21 Notice will not be successful.
Service Clauses
Your Tenancy Agreement will generally (but not necessarily) include a Service Clause, which governs the way in which Notices are served on the Tenant. Pay close attention to this clause, as if a Notice is served in a manner which is not specified in the Service Clause, there is a strong chance of the Court ruling that it has not been property served. Generally, the Service Clause allows for service by hand or by first class post. E-mail service can be allowed, as long as the tenancy Agreement shows the tenant’s e-mail address and specifically allows for e-mail service. Recent case law (Diriye v Bojaj) allows for signed-for delivery such as Special Delivery or Recorded delivery.
If there is no Service Clause, then service of legal notices is governed by s.196 law of Property Act 1925, which allows for service by first class post or by hand. The case of Blunden v Frogmore explains how if a Notice is served in the correct manner, then it will be deemed to have been served by the Court. However, as stated above, the opposite is true- if the correct manner of service is not used, the Court may well rule that service has not been effectively carried out.
Correct format of the Section 21 Notice
Put simply, the form and content of the section 21 Notice are set down by the Government and are periodically reviewed and replaced. If the wrong version of the section 21 Notice is used, or if any part of it is amended, this will automatically invalidate the notice. The valid notice at any given time can be found on the gov.uk website.
Break Clauses
A Section 21 Notice is only effective once the Tenancy Agreement has expired. If the notice period of the s.21 Notice expires while the Tenancy Agreement is still live, it will be invalid. Therefore, check for a break clause on the Tenancy Agreement. This will set out the timeframe for serving a section 21 Notice.
If there is no break clause, then the notice period of the section 21 Notice will have to expire on or after the last day of the fixed term of the tenancy agreement. Always check this carefully.
There is no secret formula for serving a valid section 21 Notice – when all is said and done, it is basic common sense. As long as the basic steps are followed, your chances of obtaining possession are very much improved.
By Chris Palmer
Disclaimer: The content of any article posted on this website is for general information only and shall not be deemed to be, or constitute legal advice on any general or specific matter.