Eviction Notice Regimes Under s21
The Deregulation Act 2015 means that there are 2 different regimes in operation for the serving of s21 notices under an Assured Shorthold Tenancy. Using either of these is known as ‘accelerated possession’ but it began to be perceived as unfair to tenants after the 2008 recession. It was seen that instead of dealing with tenant complaints, in particular those of repairs, many landlords preferred to evict as they did not have to provide proof that they had committed any wrongdoing but this left the new tenant with exactly the same problems! So, when the former Liberal Democrat MP Sara Teather raised concerns in Parliament, the term ‘retaliatory evictions’ was coined.
So, in addition to the s21 regimes there is also the potential of notices being issued by Environmental Health if the tenant reports repairs that the landlord fails to carry out rIf they serve a notice as a result of their inspection it will be one of the following:
- A notice served under s11 of the Housing Act 2004 (improvement notices relating to Category 1 hazards: duty of authority to serve notice);
- A notice served under s12 of the same Act (improvement notices relating to Category 2 hazards: power of authority to serve notice);
- A notice served under s40(7) of the same Act (emergency remedial action).
The commencement of the s21 Notice will depend on whether the AST began before or after the 1st October 2015
1: S21 (1) (b): Before 1st October 2015
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 is served. 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): Before 1st October 2015
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).
3: S21 Form 6A: After 1st October 2015
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
Both sections came into effect for tenancies created after 1st October 2015 (and apply only in England) but from October 2018 this will apply to all AST’s regardless of when they were created.
Under this Act landlords are also prevented from serving s21 Notices if, in addition to any failure in dealing with repairs, it has not dealt with requirements regarding the issuing of Energy Performance Certificates, the requirement relating to gas safety and breaching the new need to give information to tenants about the rights and responsibilities of both parties.
Challenging the Eviction
Essentially the Deregulation Act 2015 has strengthened the right of tenants to challenge a s21 eviction, something which they have always been able to do because the eviction papers include a defense form which has to be entered within two weeks of the tenant receiving the papers. After they are received the court 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. Whilst the landlord must either attend the hearing or appoint an agent to attend on their behalf, the court will accept a witness statement if neither are able to attend the hearing .The judge will listen and refer to the relevant law.
When a tenant wants to defend a s21 eviction notice then the following is required:
- A copy of the tenancy agreement signed by the tenants;
- Copy of the notices served, i.e. section 8 and/or 21;
- Certificate of service to show proof of Notice being sent;
- Copy of the most recent ledger showing arrears;
- Copy of the Tenancy Deposit Registration form;
- The Court form (completed);
- Particulars of claim (completed).
Possession proceedings must be commenced (where appropriate) within 6 months of the notice having been served because apparently 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!
If no defence 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. If the tenant refuses to leave, the next step is for the landlord go to court to ask for a Possession Order which authorisesthe county court bailiff to evict the tenant from the property. Application is made by completing form N325, which is available from the relevant court or from the Court Service website. The landlord must certify on the form that the tenant has not left the property and, if it is appropriate, that any instalments due under the judgement or order have not been paid. In other words that the tenant has breached the condition of the suspended order.
The Possession Order will be applied for through the County Courts by the landlord carrying out the following:
- Competing Form N5B (claim form for possession of property-accelerated procedure);
- 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.
Making the Order
The judge will have wide ranging powers when it comes to making an order and will direct in one of two ways:
1: Whether the order is to be made absolutely where a period of time is specified which is usually after around 14 days in order to give the tenant time to find alternative accommodation. If the tenant is claiming exceptional hardship, the order can be extended for a up to a maximum of 42 days (6 weeks)
2: A postponed/suspended order can be made if the tenant agrees to comply with certain conditions contained within the order such as paying the rent arrears by specified amounts over certain periods of time in addition to paying the rent when it becomes due. As long as such conditions are met, the landlord cannot make an application for the possession date to be fixed, and the tenant can remain in the property. If conditions are not met then the landlord can apply for a possession warrant, without the need to return to court and there will be no advance warning sent to the tenant.
The court will also decide if the landlord is entitled to his costs for taking court action.
The case may even be adjourned as a decision cannot be reached at the time. This could be in situations where:
- The tenant disputes the type of tenancy they have;
- More time is given to sort out a Housing Benefit Claim;
- There is no history of rent arrears and and the amount in question is small
- More evidence is required by the judge.
With an adjournment the tenant may receive a new date for another court hearing or the landlord may be told to reapply to the court after a fixed period of time or if there are any change in circumstances of the case.
During this time the tenant has the right to stay put.
HIGH COURT ORDER (writ of possession)
The county court is granted a general power to transfer an eviction case to the High Court under s42(2) of the County Courts Act 1984 and s42(5) where the order may be enforced as a High Court Order if the tenant doesn’t leave the property by the date given in the Possesson Order.
Application is made by the landlord completing form N325, which is available from either the court or from the Court Service website. The landlord must certify on the form that the tenant has not left the property and, if it is appropriate, that any instalments due under the judgement or order have not been paid. In other words that the tenant has breached the condition of a suspended possession order.
The bailiffs will serve the warrant on the tenant, both by hand and by post, which gives a date by which the tenant must leave which is often around 5 days time from the date of the letter. If the deadline on the warrant expires then the tenant (along with belongings) will be removed from the property which will then be secured by a locksmith in order for the (former) tenant not to break into the property as it’s a criminal offence.
Additionally, the landlord is entitled to ask the bailiff to seize the tenant’s goods, by warrant of execution, to recover any money payable under the judgement.
In cases where an outright possession order has been made, and whilst the landlord has to get permission to issue a writ of possession (except in mortgage cases and that of trespass) this can be done on a ‘without notice’ basis if the court is convinced that the occupiers have been made fully aware of all the steps leading to the possession order. This means that here is no requirement to inform them of the date of the intended eviction. Tenants will be expected to leave on the day the High Court Enforcement Officers arrive.
If the landlord believes police assistance will be required, the bailiffs must be made aware of this 5 days before the eviction date. If police assistance is then not required, then the landlord will need to confirm with the bailiffs that the eviction will still go ahead on that date and no less than 3 days before the eviction date.
It is unlawful for a landlord to take steps to enforce the possession order himself and bailiffs cannot use force
It does however often take several weeks for the eviction to be executed, and because of this, the tenant often has time to make an application to suspend the warrant and for it to be dealt with by the court the day before the date fixed for the eviction.