Tenant Eviction: Regimes under s21
Under s21 of the Housing Act 1988 (recovery of possession on expiry of assured shorthold tenancy) there is ‘no fault’ on the part of the landlord and the tenant doesn’t have to have breached their tenancy agreement. This is known as ‘accelerated possession’.
The Deregulation Act 2015 means that there are 2 different regimes in operation for the serving of s21 notices under an Assured Shorthold Tenancy. Which one is actually used depends on whether the AST commenced before or after the 1st October 2015.
1: S21 (1) (b)
This notice can be served where the tenancy began before the 1st October 2015 but has not been renewed after that date. It can be served whether the tenancy is a) in the fixed or periodic term if there has been a fixed term tenancy at some stage which has ended and b) any periodic tenancy has not arisen by way of a contractual provision in the tenancy. For a bit of background, in 2013 the Court of Appeal decided to use a new interpretation of s21 of the Housing Act 1988 in the case of Spencer v Taylor. So it upheld that a section 21(1)(b) would apply after a fixed term tenancy ended and a statutory periodic tenancy was created. Until it was heard in the Supreme Court, legal practitioners were exercising caution by continuing to advise landlords to serve notice under Section 21(4) where a fixed term tenancy had automatically turned periodic. However on 24th July 2014 the Supreme Court refused permission to appeal to Miss Taylor on the basis that no new points of law were raised. This means that the Court of Appeal decision stands and a notice under Section 21(1)(b) can continue to be served for those fixed term tenancies that have now converted to statutory periodic tenancies, providing at least 2 months notice.There is no need to use a s.21(4)(a) notice, or have a date of expiry at the end of a period of the tenancy.
2: S21 (4) (a)
This notice can also be served where the tenancy began before the 1st October 2015 but has not been renewed after that date, instead becoming a periodic tenancy. Where this notice has to be used (i.e. the fixed term tenancy has ended and the decision in Spencer v Taylor is not applicable), the notice must provide 2 months’ notice from the date the rent is payable. There is now however a relaxation of date requirement in this notice which means landlords don’t need to specify the last day of a period of the tenancy as the date of the tenancy comes to an end. So, whatever date a notice is served, it is deemed served two days after that date in order to allowing 2 working days for the notice to be received by the tenant once posted. However, landlords and their letting agents must remain aware that the date specified in the notice must still be (a) not earlier than 2 months from the date on which the notice is given and (b) not earlier than the earliest date on which the tenancy could be brought to an end under the traditional common law rules (by means of a notice to quit).
There is no longer a separate notice to be served when the fixed term converts to a periodic tenancy. Now there is a new formal legal notice for use with fixed term or statutory periodic tenancies, with no option for a landlord to write his own. A standard section 21 makes it less complex as it means it has to be the correct notice. All earlier notices are obsolete from 30th September 2015 and should be disposed of.
Under this ‘old’ regime s21 (1)(b) and (4)(a) notices do not need to be in any prescribed form. They must however be in writing, giving not less than two calendar months’ notice. In addition, a s21(4)(a) notice must a) expire at the end of a period of the tenancy and b) give not less than one period of the tenancy’s notice, such as a quarter should rent be paid quarterly.
Again under this ‘old’ regime, a s21 can’t be served in the following circumstances:
- The first 4 months of the tenancy as the court cannot make a possession order in the first 6 months of the AST;
- Served under ‘retaliatory evictions’
- Served in the absence of an EPC, gas safe certificate and ‘How to Rent Guide.’
The old s21 notices are invalid if the landlord has not:
- Obtained a HMO license for a property that should have one;
- Registered the deposit and provide the prescribed information to the tenant within 30 days of the commencement of the tenancy.
3: S21 Form 6A
A s21 form 6A is the new notice for where the tenancy commenced after 1st October 2015 and is used for notices that are reliant on both the s21(1)(b) and s21(4)(a) provisions. It explicitly states on the first page that “it may nevertheless be used for all ASTs”.
Where a s21(4)(a) notice is being used on form 6A then it can expire on any day, rather than expiring a the end of a period. The notice is a prescribed form so landlords (or their agents) must only complete the relevant sections, adding nothing else. The notice must clearly state:
- The date of the creation of the notice;
- The name and address of the tenant;
- The date that possession is required which must also allow time for posting;
- The name, telephone number and address of the person completing and signing the notice, i.e. either the landlord or their agent. Note that if it is the agent signing the notice then the address must be that of the company that they work for and not their personal address.
Tenancies are not usually granted for more 6/12 months in order to give the both the landlord and lender quick and easy possession.
CHALLENGING THE EVICTION
Tenants actually have the opportunity to challenge the s21 eviction process as the papers sent by the court include a defense form but this has to be entered within two weeks of the tenant receiving the papers. After the court receives the defence papers it arranges a closed court hearing before a judge where the tenant has the opportunity to put forward their case, stating why they believe the eviction to be invalid. The landlord must either attend the hearing or appoint an agent to attend on their behalf. A witness statement may be accepted by the Court if the landlord or agent are unable to attend the hearing .The judge will listen and refer to the relevant law.
On the other hand, if no defense papers are submitted then the court can use the accelerated possession procedure to make a decision without a hearing. If the paperwork submitted by the landlord is correct, then the possession order will be issued and a date set for the tenant to leave.
Note: This process can’t however be used if the tenant is in breach of the tenancy agreement. Instead the landlord will look to serve notice under grounds for eviction.
POSSESSION ORDER APPLICATION
Once a s21 notice has been given, possession proceedings must be commenced (where appropriate) within 6 months of it having been served. Before this, the longest time between issuing the notice and starting possession proceedings was 8 years! So once issued, landlords must be prepared to act on it otherwise they will not be able to!
So, when evicting the the tenant under s21, the landlord must apply for a Possession Order through the County Courts by carrying out the following:
- Form N5B (claim form for possession of property- accelerated procedure)
- The tenancy agreement. If there has been more than one tenancy agreement with the same tenants at the same property then copies of the first tenancy agreement, as well as the latest tenancy agreement should be sent. The tenancy agreement may need stamp duty to be paid on it before being sent to the court.
- A copy of the s21 notice and evidence of its service upon the tenants (such as a recorded delivery slip). If there is no documentary evidence of service, a certificate of service via a Form N215 may require completing or a witness statement providing evidence of how the section 21 notice was served.
- If the property is a House in Multiple Occupation (HMOs) or is located in an area designated for licensing by the local authority, a copy of the licence or, if this has not yet obtained, evidence that one has been applied for.
- If a deposit was received after 6 April 2007 evidence that it has been placed into a Government-approved Tenancy deposits scheme.
- A cheque for the court fee, details of which can be obtained via leaflet EX50 and the subsequent cheque made payable to ‘HMCTS’.
The court will then do the following:
- Issue the claim;
- Give it a claim number (the court’s reference number);
- Send a copy of the claim to the tenant;
- Write to the landlord confirming that this has been done and informing the date of service on the tenants.
But what if the tenant stays put?
It is important that landlords realise that serving a s21 eviction notice does not actually end the tenancy. Even if the tenant stays beyond the end of the tenancy date he/she does not become a squatter and is therefore not committing a criminal offence.
In fact local councils will always advise tenants who have been served a s21 notice to stay put. This is because a) councils must be satisfied the landlord is determined to follow the eviction through as per their own Homeless Guide or b) the landlord at least gets an order for possession that gives the tenant a few more days to vacate the property. The harsher reality is that they are even more likely to do nothing until the bailiffs arrive and the tenant(s) end up on their (former) front doorsteps with their possessions and children in tow. This is something which I have seen happen on my block and there aren’t many sadder sights in a civilised country. What this also means is that within the definition of Part VII of the Housing Act 1996 (homelessness and threatened homelessness) if they move out before the bailiffs arrive, unless they have somewhere to go, they are deemed to be ‘voluntarily homeless’ and will lose their right to be re-housed.
The next step will be that of applying for a possession warrant, more on which can be read here.