Things that prevent a landlord from serving a valid Section 21 Notice:
- The tenancy is in its first four months;
- The landlord has not complied with the Deregulation Act 2015;
- The landlord has not complied with the Tenant Fees Act 2019 and/ or the Housing Act 2004 (e.g. breach of deposit rules);
- The notice is set to expire during the fixed term (and there is no break clause);
- The local authority have served the landlord with an Improvement Notice.
This is not an exhaustive list.
There are sometimes actions a landlord can take to mitigate the risks associated with the above.
Deregulation Act 2015
It is important to check whether the landlord served the following on commencement of the tenancy and upon each renewal.
- Gas Safety Certificates (GSC) (if gas at the property);
- Energy Performance Certificate (EPC);
- The correct How to Rent Guide.
It is important that the landlord/agent retains proof of service on commencement and relevant renewals. GSCs should be renewed annually and served on the tenant. EPCs are valid for 10 years, and a rented property’s EPC must be rated ‘E’ or above to be valid.
In recent times, we are seeing a plenty of technical arguments being raised by tenants/ judges, which result the most straightforward claims being struck out.
Deposit/ prohibited fees
If the landlord has taken a deposit in relation to a tenancy, they must ensure:
- The deposit is not more than 5 weeks’ rent;
- The deposit was protected in a relevant scheme within 30 days of receipt;
- The Prescribed Information (including deposit certificate and information leaflet) was served on or before commencement of the tenancy.
If any of the above has not been complied with, a valid Section 21 Notice cannot be served until the deposit has been returned to the tenant. Further, if there has been a breach, the tenant may claim for up to three times the deposit amount (even if the deposit has been returned). Some tenants seek to argue this calculation is due per breach.
Service
A Section 21 Notice is usually served by first class, by hand or signed for. It may be served by email if the parties have agreed notices can be served in this way. The landlord must use the up-to-date prescribed form and allow time for service.
It is in the landlord’s interest to retain copies and evidence of service (scan of dated cover letter and notice; proof of postage if applicable). Landlords can also prepare a certificate of service relating to the same.
As a section 21 is a “no fault” notice, a simple cover letter is sufficient. Giving additional reasons for seeking possession when enclosing a “no fault” notice may cause serious issues.
Accelerated court proceedings
The section 21 route allows landlords to issue an ‘accelerated’ claim for possession and ‘fixed’ costs. Landlords cannot recover any arrears with an accelerated claim. It is called ‘accelerated’ as it does not typically have a hearing, unless a defence is filed or the judge takes issue with the claim.
Again, this accelerated route may seem straightforward but the claim form is very involved. The form requests exhibits of various tenancy documents and confirmation of their dates of service (e.g. EPC, GSCs, HTR Guide, Prescribed Information relating to the deposit). If everything is in order and no defence is filed, the judge should make a possession order.
Bailiff action
If the tenant does not vacate on expiry of a possession order, which is typically a 14-day order, landlords can apply for a warrant for the County Court Bailiff to carry out an eviction.
Landlords can also consider instructing High Court Enforcement Agents to carry out the eviction. The timescales for an eviction date are faster than waiting on the Bailiff, however, you would first need permission to transfer the matter to the High Court.
What if my section 21 claim is defended?
If the tenant files a defence and/or counterclaim to your accelerated claim, the matter will very likely be listed for a hearing. Ahead of the hearing, the landlord claimant will typically prepare a witness statement with exhibits and/ or hearing bundle.
If the matter is not settled at the first hearing, the claim will be given further directions by the judge. Further directions leading up to a trial will increase costs and delay possession.
What if the landlord does not have all the required tenancy documentation?
We advise on a case by case basis if there is anything you (as landlord) can do to mitigate the risks of a defence/counterclaim being brought.
Other options to consider include serving a Section 8 Notice (if grounds) and/ or negotiating settlement with the tenant which includes them giving vacant possession.
The section 21 route is due to be abolished by the current government. The rules are tightening and it is increasingly important for landlords to take advice early on to ensure they have complied with their landlord obligations.
Our fees
We offer a standard fixed fee* for the following stages. These fees are correct as at October 2024 – please note that they update regularly and you should contact us if you need to know the current fee structure.
- New client onboarding fee- £25 plus VAT
- Service of notice** – From £200 plus VAT
- Issue of proceedings- £895 plus VAT (plus £391 court fee)
- Attendance at a first possession hearing- £250 plus VAT
*If the claim becomes defended or particularly complex, this work will fall outside the scope of the fixed fee and we will quote accordingly.
**The service of a section 21 notice is on the assumption the landlord has complied with the various relevant regulations. We can of course assist if there are any issues.
Please contact our team at LandlordSolicitors.com to assist with your property disputes – call us today on 0330 043 6162
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