By Carl Maw
A quick internet search will show that the number of Residential Landlords have declined over the recent years. There is a number of reasons for this including changes to the legislation making being a Landlord not only harder but potentially less profitable.
I act for a number of Landlord’s and am often instructed when they require their Tenant removing from their property. This can be for a number of reasons including, failure to pay the rent, Antisocial Behaviour or just that the Landlord wishes to sell the property and believes the property is more marketable without a sitting Tenant. No matter what the reason, it is important that the Tenant is served with the correct notice. Generally either a S.8 Notice is served (usually when there are more than 2 months’ rent arrears, or antisocial behaviour or other breach of the tenancy) or a S.21 Notice (when the fixed term tenancy has expired).
The time limits before you can start Possession Proceedings after serving a S.8 or S.21 notice vary depending on the type of notice and reason (for example a S.8 Notice based on 2 months’ rent arrears is 14 days where as a S.21 Notice is 2 months). It is also important to remember that if these notices are posted then they are often not “deemed served” until 2 business days after they were posted, so it is vital to take this into account when completing the notice.
Much has changed with regards to S.21 Notices over the last few years and (assuming that the last tenancy started after 1st October 2015) a valid S.21 notice can only be given if the following has been complied with
i. If a deposit/bond was taken it was secured in the relevant government scheme within the relevant time period, and the tenant was provided with the relevant information.
ii. The Tenant was provided with a copy of the EPC at the start of the tenancy.
iii. The Tenant was provided with the rental checklist at the start of the tenancy.
iv. The Tenant has been provided with an updated gas safety certificate (where relevant).
v. The Landlord is not trying to evict the tenant as they have asked for repairs to be done to the property ‘retaliatory eviction.’
If any of the above has not been complied with then it is important that you seek legal advice before serving a S.21 Notice as there still might be ways in which we can help resolve the issues that you face.
At the present time the Courts are under enormous pressure and as such it is not uncommon for Landlords to wait months for a hearing date. If the notice served is found to be invalid then in all likelihood the claim will be struck out which not only means that the Landlord loses any court fee they have paid to start the proceedings (currently £355), but they could also be ordered to pay the Tenant’s legal costs in defending the claim, and (assuming the Landlord still wishes to obtain possession of the property) will have to serve a new notice and wait for its expiry which as outlined above could be a further 2 months (not including the days for service).
Furthermore if for example the Landlord has failed to secure any bond taken from the Tenant in one of the government schemes correctly, this can give rise to the Tenant being able to claim up to 3 times the deposit amount from the Landlord. Therefore in this situation not only would the Landlord not obtain possession in the first instance, but they could be left owing their Tenant money!
The Court will expect a Landlord to be professional and act within the law and as such any breaches pose a serious risk to the Landlord that any claim for possession will be unsuccessful. It is therefore vitally important that if you are not 100% sure of the law or that you have concerns that you may have not followed the correct procedure then you seek legal advice before acting .
This article cannot be and is not more than a 'snapshot' of the law. At Robert Barbers, we have experienced solicitors who will advise and guide you so the best outcome can achieved for you.
6th June, 2018