Evicting a tenant under Section 21 of the Housing Act 1988 used to be reasonably simple. But things have changed.
The Section 21 form may be easier to complete than before but do not be lulled into a false sense of security – the due diligence is now a minefield.
Get it wrong and you risk being unable to evict your tenant until you get it right.
Get it seriously wrong (illegal eviction) and you risk a criminal conviction, fines, damages, court costs and a jail term.
Changes under The Deregulation Act 2015
The Act has restricted landlords’ ability to serve Section 21 eviction notices. Initiall,y the new rules applied only to tenancies granted in England (but not Wales) on or after October 1 2015.
Now they apply to all assured shorthold tenancies granted in England (but not Wales).
There are key factors you must get right when serving a Section 21 notice:
- you can’t evict anyone during the first four months of their tenancy (if it’s a replacement tenancy, the four months runs from the start of the original tenancy)
- you must have provided the tenant with an Energy Performance Certificate (EPC), Gas Safety Certificate and a copy of How To Rent: The Checklist for Renting in England
- you must have complied with Tenancy Deposit Protection legislation
- you can’t evict the tenant if the property needs a licence but doesn't have one
- you can’t carry out a retaliatory eviction.
The Deregulation Act protects tenants from retaliatory eviction if they have complained (legitimately) about the condition of the property.
Fail to address a valid complaint properly and the local housing authority could serve notice on you under health and safety legislation.
That would invalidate any Section 21 notice. It would prevent you from evicting your tenant until you rectified the fault in the property, served notice again and carried out the eviction procedure correctly.
Now some good news for landlords. Under a Section 21 notice, you no longer have to specify the last day of the tenancy as the day on which it ends.
But that’s where the good news ends – because the Deregulation Act is very tenant-centric. Landlords are now discovering that:
- you can’t serve a Section 21 notice within the first four months of the tenancy
- any possession proceedings must be started within six months of the service of a Section 21 notice
- Section 21 notices must be served in a prescribed form
- the tenant may be entitled to a rent rebate if:
- they have paid in advance for any period where a Section 21 notice determines the tenancy
- and they have left the property.
Fixed term vs periodic tenancies
You can’t use a Section 21 notice to end a fixed-term tenancy before its contractual expiry date. In this instance, you must serve a Section 8 notice instead. You can, however, serve a Section 21 notice after the fixed term has expired.
Periodic tenancies: those which continue for successive periods until the tenant notifies the landlord that they want to end it.
But the law is different for periodic tenancies. There are certain notice periods that the landlord must give if they wish to terminate:
- weekly or monthly periodic tenancy – at least two months
- quarterly periodic tenancy – at least a quarter
- annual tenancy – at least six months.
Remember…under the Protection from Eviction Act 1977, you cannot evict a tenant without first obtaining a court order.
Article written by Dion McCarthy, Litigation Solicitor at Coles Miller Solicitors
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances, and is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to Coles Miller Solicitors directly.
Published on 27th March 2019