A change in the law restricting a landlord’s right to issue tenants with notices to quit their property came into force at the start of October.
But many buy-to-let investors are unaware that some of the new rules governing the issue of a Section 21 Notice Requiring Possession only apply to assured shorthold tenancy agreements entered into after the new rules came into force.
Named after Section 21 of the Housing Act 1988, a landlord can issue an s21 notice to a tenant to regain possession of a property at the end of an AST without the property owner having to establish a “ground” for possession.
However, the Deregulation Act 2015 imposes a number of new restrictions on a landlord’s ability to issue an s21 notice if the AST started on or after 1 October 2015. These include…
- It is no longer possible to issue an s21 notice in the first four months of a tenancy. This poses a potential problem for landlords who issue six-month ASTs because it will now be practically impossible to time the service of the notice correctly to have the tenant leave at the end of the six months.
- Once an s21 notice has been served, possession proceedings must be started within six months.
- The introduction of a new prescribed form of s21 notice requires landlords to insert a date after which the tenant is required to leave the property.
- The validity of an s21 now depends on a landlord complying in full with the Deregulation Act 2015, which governs the use of a Deposit Protection Scheme and providing tenants with a valid Energy Performance Certificate, a current gas safety certificate and a copy of the government publication How To Rent: The Checklist for Renting in England.
The good news for the majority of the 1m-plus private landlords in England and Wales that the Deregulation Act 2015 covers is that the old s21 rules will continue to apply until 1 October 2018 – as long as the AST was issued before 1 October 2015.
Whether you are a landlord with one property or 1000 homes to let out, an s21 notice must be issued to a tenant before you can apply to the court for a possession order – even if the tenancy agreement has come to an end.
The vast majority of landlords do not have to use the legal system to regain possession of their properties but the risk of tenants refusing to leave remains very real. If, for example, your tenant hasn’t left at the end of the tenancy then your best action is to issue an s21 notice and wait two months before pursuing the matter through the courts. During that time, you are unlikely to be able to collect the rent due.
When should I issue an s21 notice? The minimum amount of time a landlord needs to issue an s21 notice is two months and it must be served before or on the day on which the fixed term comes to an end. It is, therefore, advisable to issue the s21 notice at least two months before the end of an AST agreement so that if your tenants fail to leave, you can start court proceedings immediately because the two-month notice period will expire at the same time the AST ends.
Free download #2 | Letter to Accompany a Section 21 Notice Requiring Possession | DOWNLOAD
An s21 is a legal document, so it needs to be written in a tone that can appear to be quite harsh and formal. To soften the impact of an s21 notice, it is advisable to send it out with an accompanying letter.
Please note that this letter – and an s21 notice – should only be used after you have spoken to the tenant and they have confirmed they wish to leave the property.
What about retaliatory evictions?
The Deregulation Act includes new conditions that ensure the health and safety of tenants who rent a property under an AST before a valid s21 notice can be served. This is to prevent so-called retaliatory or revenge evictions, and mean an s21 notice cannot be served if….
- The tenant has made a written complaint to a landlord about the condition of the property before an s21 notice has been served.
- The landlord has not provided an adequate written response to the complaint within 14 days.
- The tenant has complained to the local authority, which has served an improvement notice or emergency remedial notice.
Even if a landlord serves an s21 notice between a complaint being made and a written response is issued, it will be invalid if the local authority serves an improvement notice.
In practical terms, this means that if a tenant makes a written complaint about the condition of the property, landlords will be unable to give notice to vacate and recover possession of the premises as a direct response to the complaint.
What’s more, if a local authority issues an improvement notice, landlords cannot serve an s21 notice for six months.
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