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Residential properties are often let by a landlord to tenants on assured tenancies. There are other types of residential tenancies, but these are the most common.
If a landlord wants to regain possession of their property that is let on an assured tenancy, then they will need to serve notice on their tenant before issuing possession proceedings. A landlord can serve a section 8 notice or a section 21 notice to regain possession.
Section 8 Notices
Section 8 of the Housing Act 1988 (the Act) allows a landlord to end an assured shorthold tenancy subject to a ground for possession being met. These notices are usually used where there has been some fault by the tenant. Some of the grounds under section 8 are mandatory, i.e., where the Court must grant possession, and others are discretionary. The grounds are set out below.
What are the Mandatory grounds?
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Ground 1 |
The landlord requires possession as he used to occupy the property as his main home or he now wishes to occupy the property as his main home. |
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Ground 2 |
The property is subject to a mortgage and the mortgagee is entitled to exercise a power of sale. |
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Ground 3 |
The tenancy is a fixed term of not more than 8 months and the property was previously a holiday let. |
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Ground 4 |
The tenancy is a fixed term of not more than 12 months and is student accommodate let out of term. |
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Ground 5 |
The property is that of a minister of religion. |
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Ground 6 |
The property requires redevelopment. |
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Ground 7 |
The tenant has died. |
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Ground 8 |
The tenant is in arrears of rent. |
What are the Discretionary grounds?
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Ground 9 |
Suitable alternative accommodation is available for the tenant upon possession. |
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Ground 10 |
The tenant is in arrears of rent. |
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Ground 11 |
The tenant persistently delays paying rent, whether or not the rent is currently in arrears. |
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Ground 12 |
Any obligation of the tenancy has been broken, other than payment of rent. |
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Ground 13 |
The condition of the property has deteriorated due to the tenant’s conduct. |
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Ground 14 |
The tenant is causing a nuisance or annoyance to people residing at the property, visiting or carrying out a lawful activity in the locality. |
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Ground 15 |
The tenant has allowed the landlord’s furniture to deteriorate due to ill-treatment. |
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Ground 16 |
The tenant occupies the property due to his former employment by the landlord. |
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Ground 17 |
The landlord granted the tenancy as a result of a statement made by the tenant, which is later found to be false. |
How much notice do I have to give?
The amount of notice given will depend on the ground for possession the landlord has used. If the section 8 notice is served after 1 October 2021, the landlord will normally provide at least two weeks’ notice. Once the notice period has expired, possession proceedings can be issued.
How to ensure the notice is valid
The landlord should provide the notice in writing using ‘Form 3’, which can be found on the GOV.UK website. However, the notice will not be valid if it does not include: the tenant’s name(s), the address of the property, the grounds for possession and the date the notice ends.
If the tenant fails to vacate after the date set out in the notice, the landlord will need to issue a claim to the Court.
Section 21 Notice
Section 21 of the Act allows a landlord to end an assured shorthold tenancy without any reason or ground for possession.
In December 2019, the Government announced that they intended to end no fault evictions as part of the Renters Reform Bill. As yet, there has not been any change in the law, but it is likely that section 21 notices will be abolished in the future.
What is a section 21 notice?
A section 21 notice is a notice that must be provided to the tenant if the landlord wishes to end the tenancy. A landlord usually cannot serve a section 21 notice within the first four months of the original tenancy starting.
The landlord must use the prescribed form 6A to serve a section 21 notice, which is maintained on the Gov.Uk website.
What is the notice period and how do I give the notice to the tenant?
The minimum notice period is two months. However, in some cases, the notice may need to be longer.
The landlord is not required to serve the notice in a specific way. However, if the tenant fails to acknowledge the notice, then the landlord must prove that the notice was served.
The notice must be served by the tenant’s immediate landlord or the landlord’s agent.
It is best practice to serve the section 21 notice by first class post or special delivery. Section 196 of the Law of Property Act 1925 provides that service is valid if a notice was sent by registered post, recorded delivery or personal delivery to the tenant’s property. Other methods may also be mentioned in the tenancy agreement that ensures service is valid.
It seems simple to serve a s.21 notice, how do I ensure it will be valid?
There are a number of different reasons why a section 21 notice may be invalid, and we cover the more common reasons below.
Deposit
If there is a deposit, the landlord must protect the deposit within an authorised scheme within 30 days of receiving it. If this has not been complied with, a landlord can only serve a valid section 21 notice if either (1) the deposit is returned to the tenant in full, or with deductions, the tenant agrees to or (2) the tenant made a claim for compensation for the failure to protect the deposit, and the claim has been determined, withdrawn or settled.
The tenancy started on or after 1 October 2015
There are different rules that apply if the tenancy began or was renewed on or after 1 October 2015. If the tenancy began after then, the section 21 notice could be invalid if the landlord failed to provide the tenant with a copy of the current gas safety certificate, a valid energy performance certificate and a copy of the How to Rent Guide.
Gas certificate – the landlord must provide a copy of the latest gas certificate if there is a gas at the property.
The landlord can provide a copy to the tenant at any point prior to serving the notice.
Energy performance certificate (EPC) – the landlord must provide the tenant with a copy of the valid EPC, which can be given at any point prior to serving the notice.
How to Rent Guide – this can be provided as a paper copy or sent by email. However, the landlord can only send the document via email if the tenant has agreed to service of notices and documents by email. The Guide can be provided any time prior to service of the section 21 notice.
If, as a landlord, you are thinking of serving a notice on your tenant to regain possession, then you should seek advice on the best way to proceed. Whilst these notices appear to be simple, if you have not served them correctly, then it will delay you in recovering possession of your property. If the tenant is not paying rent, then this can result in a significant loss to you.