Landlords have a choice of paths to follow when seeking to (lawfully) evict a tenant. Both paths are governed by the Housing Act 1988.
Section 8 concerns breaches of the tenancy agreement, often, but not always, failure to pay rent.
Section 21 is the “no fault” procedure, beloved by many agents.
The section 21 process is often referred to as the “accelerated “ process, although in practice it is often difficult to see why. A notice issued under section 8 for failure to pay rent gives the tenant 2 weeks to make up the arrears before the landlord can make an application to court for a possession hearing. A notice issued under section 21 must give at least 2 months notice before allowing the landlord to make an application to court.
It is important to remember that this is a court process and therefore the tenant has the right to defend the proceedings. In the event that no defence is received to a section 21 notice, the landlord may apply to court for a default judgment giving possession of the property (although if this process is used, the landlord does not get a judgement for the arrears, as with a section 8 notice, and would have to pursue this separately if it was felt there was a realistic chance of recouping the amount owed).
The advantage of the section 21 procedure is that it does not require proof of any fault on the part of the tenant. Such “no fault” evictions have therefore been criticised for causing lack of security of tenure.
There are, however, certain prerequisites for the section 21 procedure to be successful.
Firstly, the notice has to be an up to date version in order to be successful. Beware the internet download.
“Retaliatory evictions” have been illegal for some time. Such evictions are defined as being in response to the tenant raising issues of disrepair at the property. A tenant has the right to expect that the property is inhabitable, with functioning water and heating for example. However, the landlord is not expected to have a crystal ball and the tenant has a duty to report faults. Further, the landlord cannot be expected to repair all faults overnight and the tenant obviously has to co-operate with allowing access to the property. A tenant cannot rely on issues raised after receiving a section 21 notice.
Courts are strict on timescales. The section 21 notice should set out the date on which the tenant is expected to vacate and this date is at least 2 months after the date of the notice being received. If the notice is sent by first class post, 2 days should be added onto the timeframe. The person who issues the notice is required to complete a certificate of service to in effect testify when and how the notice was served on the tenant.
The court application includes details of the tenancy deposit scheme the deposit was placed into, together with the date the information regarding the scheme was provided to the tenant. Failure to place the deposit in a protected scheme and provide the information to the tenant will automatically give the tenant a counterclaim and render the landlord liable to refund the deposit and pay a penalty of between 1 and 3 times the deposit. If the original term of the tenancy has expired and the tenancy has become “periodic” this penalty is doubled.
The court application for a section 21 eviction also requires confirmation that an Energy Performance Certificate has been provide to the tenant. As these are valid for 10 years that shouldn’t be a hardship.
The court application also requires confirmation of the up to date annual gas safety check.
Unfortunately there is no room for any “err”, “but” or “if” on the application form to court.
This article is produced to provide general information only and should not be relied upon for legal advice.
For advice on Landlord & Tenant law, contact Ian Clay at Walker and Co.