The Renters (Reform) Bill will soon enough make section 21 Housing Act 1988 notices, otherwise known as ‘no fault’ notices, essentially obsolete. However, given the wide-ranging and hotly debated topics being considered, the new bill is going to take some time to be discussed, amended and then perhaps a further period of time before it has legal effect. This means that the section 21 procedure remains an integral tool for landlords when recovering possession of their property, and one that still too regularly is done incorrectly.
Despite being a staple of residential landlord and tenant law for some time, the section 21 notice has a complicated history. It has gone from a notice that is difficult to get wrong and where landlords will be given the benefit of the doubt or able to correct errors last minute, to the current position where you need to ensure you have all of your ducks in a row, otherwise you have an invalid notice. As such, ensuring that the original notice is valid is key, rather than waiting months and having to re-serve.
This blog is designed to provide an overview as to what is required. There will be certain assumptions made such as, that you are in a position to serve the notice either in line with an agreed break clause or at/after the end of the fixed term, but it should give you a general idea as to what you need to do/consider.
Pre tenancy documentation
One of the most common flaws with invalid section 21 notices that we see regularly is actually nothing to do with the notice itself. The fatal error originates at the beginning of the tenancy.
The Deregulation Act 2015 brought in requirements for the section 21 notice. In order to validly serve the notice, the tenant would need to have been served the necessary gas safety certificates, the Energy Performance Certificate (EPC) and the up to date How to Rent Guide drafted by the government. These were already requirements pre-Deregulation, but previously these would not have affected the validity of a section 21 notice. Keeping proof that this was served correctly is key because the requirement is not to have copies, but to show they were served on the tenant. It has become common practice for landlords and managing agents to re-serve this information prior to the service of the section 21 to ensure there are no argument over service and to ensure the up-to-date versions of the relevant documentation have been sent. If, however, you have found that the failings at the beginning of the tenancy were that there was no gas safety certificate served on the tenant then following the respective decisions in Trecarrell House Ltd v Rouncefieldand also Caridon Property Ltd v Monty Shooltz, you may have no ability to remedy this breach and therefore no option to recover possession of the property unless the tenant is in breach. It is worth noting that staying in the property after the end of the fixed term is not considered a breach of contract.
In addition to the above, you need to ensure the deposit has been properly protected. We previously wrote about this topic, so I will not go into detail on your obligations for this, and you can view it here.
The start of the tenancy is crucial to set up the landlord’s ability to later rely on things like section 21 notices. The ‘I didn’t know’ defence may work in some areas of landlord and tenant law, particularly in mitigating the effects of breaches, but it will not help you with section 21 notices. Make sure everything has been done correctly and if you are unsure, instruct someone who does, to assist you.
Make sure you are filling the form in fully, where directed, give enough notice (a minimum of 2 months or longer if your break clause requires it) and take account of how to sign the notice:
The key part of the notice is to make sure you are using the up-to-date version. The notice tends to be updated yearly and whilst the changes are normally fairly insignificant or hard to see, using an out-of-date version automatically renders the notice invalid. The best way to avoid this is simply to use the latest version on the government website on the specific day that you need it.
It is important to check your tenancy agreement to ensure that you are not tripped up in the final stages of serving notice. Your agreement should have a notice provision that says how notices should be served. If your agreement does not have a clause like this, it should not be assumed that first class post will be enough, instead, you will need to ensure personal service in this situation. If you need to give two working days for service because the notice is to be served by first class post, make sure you are leaving enough time and not including weekends or bank holidays in your calculations.
If you are using the post, then you could consider using a method where the tenant needs to sign for delivery, and then check for proof of this on the Royal Mail website. Save that proof of delivery, as the court may ask you for proof that the tenant has actually received the notice. Also remember that a wily tenant will often refuse to sign for delivery of an unexpected item, and the notice will then often be returned to you, undelivered, 6 to 8 weeks later. Obviously, if this happens, then there will be no valid service, so many Landlords do not take the risk of posting their notices. Hand delivery through the letterbox is much safer.
Factors to consider
The final point that I want to raise, is to be aware of what has gone on with your tenancy to date. Consider things like, if there have been assignments and new tenants added or removed, make sure your pre-tenancy documentation (particularly the deposit protection) is updated and that the notice reflects the current situation rather than just what the original tenancy said.
As mentioned previously, the above is just a snapshot. The process is complicated and there are plenty of ways that a landlord or managing agent can get into trouble, and the most common of these is taking the process for granted and not making sure everything is in place and correct before starting the procedure.
If you are in doubt over the process or indeed if the validity of the notice is crucial because of an upcoming sale of the Property, it is best to seek professional advice beforehand, either to give you some initial advice or simply to serve the notice for you. There is very little that is more frustrating, than a minor error being the reason that possession cannot be recovered. If we can be of assistance in either the service of the notice or alternatively if the tenant fails to vacate following the expiry of the notice and court proceedings are required, we would be happy to help. You can contact me at [email protected].
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.