We appreciate that landlords will be keen to evict tenants who are not paying rent, or causing nuisance or damage to their property, but it is important in these situations to make sure that the correct due diligence and accuracy is accounted for.
With tenants often being able to seek advice or representation from organisations such as the Citizens Advice Bureau or Shelter, inaccuracies or mistakes within section 8 or section 21 notices are causing the validity of the notice to be challenged, preventing landlords from gaining possession.
Whilst a landlord can still issue court proceedings even if the notice is invalid, it is very likely that a court will throw out the claim and decline possession if the notice is found to be invalid.
The worst case scenario for a landlord is that they waste time waiting for the original notice to expire, issue proceedings, wait for the next available court date, only to find that the notice is deemed invalid and they have to start the whole process again, costing further legal fees, not to mention the lost rent if the tenant has already stopped paying.
Common mistakes which render a notice invalid
Unable to rely on the notice, or using the wrong type of notice
A section 8 notice is used if your tenant has broken the terms of the tenancy. A section 21 notice is used to evict tenants either after a fixed term tenancy ends, or during a tenancy with no fixed end date (know as a “periodic tenancy”).
Landlords cannot use section 21 if:
- It is less than four months since the tenancy started, or the fixed term has not ended
- The landlord does not have the correct licence (eg HMO, or if in Wales a licence to rent from the local council)
- The landlord failed to protect the deposit in one of the Government approved deposit schemes
- The landlord has failed to serve the prescribed information on the tenant, such as:
- the Government’s “how to rent” guide
- the property’s energy performance certificate, valid for ten years
- a current gas safety certificate for the property (if gas is supplied, conducted every 12 months)
- a valid EICR conducted in the last five years.
Landlords cannot use a section 8 or section 21 notice if the tenant does not have an assured shorthold tenancy (AST).
Inaccurate notices
A notice needs to ensure that it includes:
- The tenant’s full name (as it appears in the AST)
- Full property address
- Reason for eviction or grounds for possession (particularly for section 8)
- Date the notice ends
- The landlord’s name (as it appears in the AST)
- Signature along with the name and address of the signatory.
A common mistake found in notices is a failure to include the landlord’s name and address as it appears in the AST, or a failure to include the landlord’s name and address in the AST in the first place. Section 48 of the Landlord and Tenant Act 1987 requires landlords to provide an address, which must be in England or Wales, at which notices may be served on them by their tenants.
A notice must provide details of the landlord’s name and address as it is stated in the tenancy agreement, and be signed by the landlord or agent. The signatory must then provide his/her details as requested underneath the signature. Failing to ensure this is done correctly may render the notice invalid. A common mistake is made by letting agents who put their details on the notice, rather than the landlords because they are signing it – this is incorrect, the landlord’s name and address needs to be stated on the notice, and if the agent is signing the notice on behalf of the landlord, then they would need to put their name and address under their signature.
When relying on a section 8 notice it is important to state the grounds the tenant has breached and provide a full explanation as to why the landlord is citing them as the reason for eviction. For example, if you are relying on ground 8, unpaid rent, it is good practice not only to state the tenant has failed to pay more than two months’ worth of rent, but to also set out in detail the arrears and which months those arrears relate to.
Failure to provide the correct notice period
A landlord must ensure that the correct amount of notice is given to the tenant otherwise it will render the notice invalid. For clarification on how much notice you should serve on your tenant please refer to the government website.
Generally a landlord is required to give at least two months’ notice for a section 21 notice, however there may be circumstances where this may differ.
Each of the grounds under section 8 require different notice periods and therefore depending on which grounds you are citing, you will need to ensure you are giving the appropriate amount of notice to cover all grounds.
Please also keep into consideration postal rules as to when the notice is “deemed served” on the tenant. Landlords who miscalculate the notice period by failing to account for the postal rule risk rendering their notice invalid because they failed to give sufficient notice from the date it was served – it is therefore always best to err on the side of caution so as to avoid the wasted time of having to re-serve the notice.
Failure to evidence that the notice was served correctly
We normally recommend to send the notice via first class post with a proof of postage as receipt (you can get this on request at the post office), please ensure that you keep a copy of the notice yourself.
It is not recommended to use “signed for” delivery as a tenant could simply refuse to sign for the letter in which case it would not be deemed served.
If you hand deliver the notice to the property, it is important you complete a certificate of service.
Please note: This guide is a brief overview of a complex and difficult area of law. Is it is not intended as legal advice and you should seek specific advice from a solicitor on your particular situation. To be referred to a specialist solicitor please contact us on 0161 696 6170.
Hi, we initiated the Section 21 notice to our tenent and the claim has now gone to court, stating the defence that we didnt issue the Section 21 correctly. If we abandon this claim and issue a fresh setion 21, will we be liable to pay the tenent costs for duty solicitor for court appreance.
Thanks
Response from Stephensons
Thank you for your comment. Our specialist landlord and tenant solicitors would be happy to help but would need more information to be able to advise you accurately. If you could call us on 0333 999 7155 the team will assist, alternatively please email commercialenquiries@stephensons.co.uk and we will contact you directly. You can also complete our online enquiry form.
Hi
I initially let my Property out via a letting agent who found a tenant on my behalf in 2014, they issued the How to rent guide, the EPC cert (valid until this year) and the tenancy at the time. The tenant left the Property in Jan 2022 but I didn't notify me and I didn't find out until May 2022 when chasing late payment for rent - she advised she had left but her Partner was still living there.... On the inspection prior to her leaving I had noted a few damages to the Property and advised she got these fixed asap. She did not get these fixed prior to leaving.
Her Partner / Now Ex Partner continued to live there since and generally pays rent on time. However there has been substantial damage to the property since which I noted during inspections in and around September 2023. I wrote the remaining Tenant a letter and gave him a staggered schedule of repair to which he agreed all to be complete by March this year - he is now behind on the December Schedule and likely not going to be in time to keep to the January one. I have since done a thorough inspection using the original itineary and pictures taken in 2014 as comparison and noted a lot more damage, rubbish all over the garden and lack of cleanliness (this more thorough inspection was done due to the amount of Furniture the tenant has put in the property and lack of tidiness generally preventing thorough inspection prior to this. the remaining Tenent has never been offered a new tenancy agreement - it has been a Verbal agreement since I discovered the previous tenent left
He is now saying he doest have the time or the money to carry out the repairs on time. I feel he is stalling and will attempt to leave the property without notice etc. leaving me to pay the mortgage and cover the cost of repairs - Where do I stand on this? What Can I do? Ideally i want this tenant to Pay to rectify the damages and I want him out of the property ASAP.
Response from Stephensons
Thank you for your comment. Our specialist landlord and tenant possession solicitors would be happy to help. If you could call us on 0333 999 7155 the team will advise you in more detail, alternatively please email commercialenquiries@stephensons.co.uk and we will contact you directly. You can also complete our online enquiry form.
Hi I've served a section 21 on my tenant 2 years ago but I hadn't protected her bond for 8 years, as soon as I knew I was in breach of the deposit protection rules I protected it, I now have served another section 21, however I forgot to give her prescribed information! Will the judge still grant possession? I'm worried I haven't followed rules and won't get my property back because of the late protection.
Response from Stephensons
The current deposit rules state that a tenancy deposit must be protected within 30 days of receipt of the deposit payment therefore, protecting this late, wouldn’t remedy the landlord’s breach and the notice will likely be considered to be invalid. To mitigate their loss, landlords may wish to consider returning the deposit in full to the tenant which will mean they can then serve a valid section 21 notice and this would also limit the tenant’s potential claim against the landlord for a breach of the tenancy deposit rules. Should you wish to obtain specialist advice in relation to this, please do contact our team on 0161 696 6170.
My tenant has been in situ since January 2013. The AST morphed into a periodic tenancy. He is now in rent arrears and I wish to serve him a Section 8 notice. I have an up to date gas safety certificate and EHIC. but do not have an EPC as this was not required in 2013. Will this lack of and EPC compromise my ability to use Section 8?
Response from Stephensons
If a tenancy agreement began before 1 October 2015 and a new fixed term has not been entered into, there is no requirement for an Energy Performance Certificate (EPC) to be served. It is always best practice to have an EPC in place however, this shouldn’t prevent the service of a Section 8 Notice. If you need any further advice on your requirements as a landlord or how to serve a valid Section 8 Notice, please do call us on 0333 999 7155 or complete our online enquiry form and we will contact you directly.
I issued a section 8 notice, failed to mention the term 'Ground 8' in my N119 submission and lost the possession claim! The judge said I could still use my Section 8 notice for issuing a new possession claim. However, the tenancy is due to end in a few days and will become a rolling periodic one. Can I indeed still rely on the original Section 8 or will it need to be a Section 21 due to the switch to periodic? The Judge wasn't aware of the end date of fixed term AST. I have 9 days before the switch to periodic.
Response from Stephensons
A periodic tenancy doesn’t prevent a landlord from serving either a Section 8 Notice or Section 21 Notice. Ground 8 is crucial for a Section 8 claim as this is the mandatory ground for possession based on rent arrears and therefore, should be relied upon within the notice. If you would like advice and assistance on your options moving forward, please feel free to contact our specialist team on 0333 999 7155.
If a letting agent has put only their name on the AST will this be valid on possession proceedings? The notice is in the landlords name c/o the agent and the agent signed on behalf of the landlord with letter of authority from the landlord. Only concern is that the AST doesn't have the landlords name.
Response from Stephensons
Thank you for your comment. Our specialist landlord and tenant possession solicitors would be happy to help. If you could call us on 0333 999 7155 the team will advise you in more detail, alternatively please email commercialenquiries@stephensons.co.uk and we will contact you directly. You can also complete our online enquiry form.
Hi. My tenant lives in flat 3 of a hmo and shares shower and wc with other tenants, The agreement refers to flat 3 but my notice of possession s21 was declared void by the judge as I hadn't put flat 3 on the notice or claim, just the property address. It is an HMO. Is the judge correct to do this? I have done this before and everything proceeded fine.
Response from Stephensons
Thank you for your comment. Incorrectly identifying the complete property address on a notice seeking possession and/or a claim form can often lead to a claim being struck out by the court. If you would like advice and assistance on your options moving forward, please feel free to contact our team on 0333 999 7155.
I served S21 in March to my tenant but did not attach the updated version of How to Rent, even though l had attached one to the original tenancy contract in Dec 2016. Did not realise l had to attach it again (updated). Is my S21 still valid? Thanks
Response from Stephensons
The How to Rent Guide should always be served at the start of the original tenancy and it is important to serve the most up-to-date version available at that time. However, you don’t need to keep providing a copy when new versions are released.
A new copy of the How to Rent Guide only needs to be served if a tenancy is renewed and a new version of the guide has been released at the time of the renewal. If you need any further assistance our specialist solicitors would be happy to help, please call us on 0333 999 7155.
I am Executor of my fathers will. He owned a flat which is being rented. The family wish to sell the property, not take ownership and become landlord. I cannot complete a sale until Probate is granted but I can put the property up for sale. Can I serve notice now to obtain vacant possession status.
Response from Stephensons
Thank you for your comment. Our specialist landlord and tenant possession solicitors would be happy to help. If you could call us on 0333 999 7155 the team will advise you in more detail, alternatively please email commercialenquiries@stephensons.co.uk and we will contact you directly. You can also complete our online enquiry form.
If I'm served a section 21 notice do I myself still have to give notice to leave?
Response from Stephensons
Thank you for your comment. There are a number of issues to be considered if you have been served with a Section 21 Notice. Please feel free to contact our team on 0333 999 7155 for more information about how Stephensons can assist.