Why is there a rush from landlords to evict certain tenants?
The upcoming Renters' Rights Bill has led many landlords to attempt ending assured shorthold tenancies (ASTs) before the new regulations take effect. However, in their rush, some have neglected to follow the properlegal eviction process, such as failing to give the required notice and unlawfully locking tenants out of their homes, which can result in legal action. Below is a summary of the current statutory process for ending ASTs, highlighting key steps landlords need to take before the new bill is enacted, and common mistakes to avoid.
What are the two main ways of ending assured shorthold tenancies?
Under the Housing Act 1988, there are two main methods for terminating an AST:
- Section 21 (“no fault” evictions): This allows a landlord to serve notice to end the tenancy at the end of the fixed term (or at a break date) without needing to prove fault.
- Section 8: A landlord must prove specific grounds for eviction, such as a tenant breaching the terms of the tenancy and obtain a court order to terminate the tenancy. This is most commonly used for rent arrears.
When the Renters' Rights Bill becomes law, all ASTs will convert to periodic tenancies. Landlords will then need to demonstrate statutory grounds, similar to those under section 8, to end a tenancy. With repossession of properties potentially becoming more difficult, particularly if tenants fall behind on rent, many buy-to-let landlords are concerned about losing the ability to quickly reclaim their properties. Consequently, many maybe eager to use section 21 while it remains an available court procedure.
What is the section 21 eviction process?
To terminate an AST using section 21, landlords are not required to provide a reason for eviction. They must serve at least two months’ notice in the correct legal form, after which they can apply to the court for a possession order if the tenant does not vacate.
The notice does not need to be tied to a specific date and can be served before the tenancy ends, taking effect after the end of the fixed term or at a contractual break date.
Section 21 proceedings are also called ‘Accelerated Proceedings’ due to being designed for Judgment to be made without the need for a hearing. Due to this the application paperwork is a large document of which multiple pieces of evidence are requested. This is for the Judiciary to understand that all due legal requirements have been adhered to by thelandlord.
What are the common mistakes to avoid?
Although the section 21 process is designed to be straightforward, several potential errors can invalidate the notice:
- Serving the notice too early: A section 21 notice cannot be served within the first four months of the tenancy.
- Failure to register the deposit: Landlords must protect the tenant’s deposit in a government-approved scheme and provide relevant information to the tenant. This can also result in a counterclaim being brought against the Landlord for up to 3 times the value of the deposit.
- Lack of required certificates: Landlords must supply the tenant with both an energy performance certificate (EPC) and a gas safety certificate. Each following gas safety certificate should also be served to the Tenant, with the date of service recorded.
- Failure to provide the "How to Rent" guide: This guide must be given to tenants at the start of the tenancy to ensure they understand their rights and responsibilities. It is important to ensure that the correct edition is provided to the tenant at the beginning of the tenancy.
- Non-compliance with the Tenant Fees Act 2019: If a landlord has violated the Act’s rules on deposits and fees, they cannot use section 21.
- Retaliatory eviction: If a tenant complains about the property and the landlord fails to respond adequately, any section 21 notice served afterwards may be deemed invalid; and can result in a counterclaim against the landlord.
- Notice period errors: The two-month notice period must be accurate, and in some cases the termination date must align with the end of the fixed term or a break date.
- Incorrect notice format: The notice must follow the legal format prescribed by statute; being Form 6a
- Failure to prove service: Landlords should ensure they have evidence that the section 21 notice was properly served to the tenant; this is commonly done on form N215.
- Court proceedings for possession: Even with a valid notice, landlords must obtain a possession order from the court and, if necessary, a warrant or writ to enforce it.
Though the section 21 process is often considered astraight forward way to regain possession of a property, landlords must still take care to follow all legal requirements. The landlord should ensure that all paperwork is in order before beginning a claim or even serving a notice, due to the risk it may put them in if the landlord has not fulfilled their legal obligations.
Failure to do so, or taking unlawful actions such aschanging the locks while tenants are still living in the property, can result in prosecution and hefty fines against the landlord.
Do you require further information?
Should you require any further information regarding possession actions, please do not hesitate to contact Mr Bill Dhariwal (E: bill.dhariwal@lawcomm.co.uk) o rMr Sam Nolan (E: sam.nolan@lawcomm.co.uk).
The above article does not constitute legal advice.
