Section 21

4 tips for landlords to avoid invalid section 21 notices

Section 21

Getting your property back from your tenant can be tricky if don’t follow the correct procedure.  You can either serve a Section 8 notice or a Section 21 notice depending on the situation, but make sure to follow the correct steps. Read our latest blog to make sure that you can get your property quickly and legally!

The more common notice is the section 21 notice. This is a no fault possession eviction notice. This means that you don’t need to give any reason for wanting the property back. New regulations prevent you from serving a section 21 notice if the legal requirements haven’t been complied with. Many landlords make common mistakes and serve an invalid notice which means they can’t regain possession of the property. Here are 4 tips to make sure you avoid serving an invalid notice.

4 tips for landlords

1) Protect the tenant’s deposit

This is the main mistake landlords fall foul of. Under the law, a tenant’s deposit must be protected in a government approved tenancy deposit scheme (TDS).

If you take a deposit from the tenant, it must be protected and the tenant must be given the prescribed information within 30 days of the deposit being taken. You cannot serve a section 21 notice if this requirement isn’t met. An unprotected deposit will make the notice invalid.

The only way of being able to regain possession of the property is if you return the deposit first. Whilst this is not ideal, this is the only way to evict the tenant if the deposit wasn’t protected in time or the prescribed information wasn’t given.

Check: When you take a deposit from the tenant, ensure the deposit is put in one of the three schemes and the prescribed information is served on the tenant within 30 days.

Solution: If the tenant’s deposit isn’t protected, then you should return the deposit to the tenant before serving a section 21 notice.

2) Make sure the tenant’s and landlord’s name is correct

This can be an issue where the landlord is a company but the tenancy is in the name of an individual director of the company or the landlord has someone acting on their behalf and the landlord is named as the person acting instead (eg if a letting agent is used).

Check: If you have instructed an agent to act on your behalf, the agents should make sure that the details of any tenancy agreement are correct and that service of a section 21 notice states the person or company acting on your behalf. Landlords should also make sure that any information given to a letting agent is accurate and up-to-date.

Solution: If the name on the notice or tenancy agreement is wrong, you will need to serve the tenant with a Section 48 notice. This notice notifies the tenant of the correct address of the landlord. You will then have to serve a new section 21 notice.

3) Provide the tenant with the How to rent guide, Energy Performance Certificate (EPC) or gas safety certificate

For any AST that started after 1 October 2015, it is a legal requirement that the landlord provides the tenant with the government ‘How to Rent’ guide, a current gas safety certificate and a current Energy Performance Certificate. The landlord cannot serve a section 21 notice if these weren’t supplied.

Check: Ensure that the ‘How to Rent’ checklist, gas safety certificate and EPC are supplied to the tenant at the start of the tenancy.

Solution: If you haven’t provided the correct information, you will need to give them to the tenant as soon as possible before serving the section 21 notice. However, a recent court case held that failure to provide a copy of the gas safety certificate at the start of the tenancy did invalidate a section 21 notice and therefore dismissed the claim for possession. This is subject to change as it was a non-binding decision by a County Court.

4) Check if you need to obtain selective or additional licences

In some areas, the local council has introduced selective or additional licensing for private rented accommodation. This means that landlords may have to apply to the local council for a licence in order to legally rent out property. Without a licence, the landlord cannot serve a section 21 notice. For further information read Selective licensing.

Check: You should check with your local council to see whether there is a requirement to have a selective licence. As each local council can set their own rules and requirements, these can change from time to time.

Solution: If the property requires a selective licence but doesn’t have one, you need to apply for a licence immediately before serving the section 21 notice.

Make your Section 21 notice and Make it legal today. Ask a lawyer if you need further advice. For further information read Repossessing property – section 21 notices.

Alan Cheung