How do I serve a valid notice on my tenant?
If you are a landlord and you need to evict your tenant, the first step is to serve a valid notice. If the tenant has an assured shorthold tenancy, there are two types of notice a landlord can serve on their tenant – section 21 notices and section 8 notices.
How do I serve a valid section 21 notice?
A section 21 notice is usually the easier route as the landlord does not need to prove that the tenant has broken the tenancy agreement. These notices can only take effect after the fixed term is over of by way of a break clause in the fixed term. The notice must be in writing, the notice period must not be less than two clear months. If the tenancy began on or after 1 October 2015 or has been renewed after that date then the notice must also be in the prescribed format and cannot be served in the first four months of the tenancy.
Deposit Issues
The landlord needs to make sure that if a deposit has been taken, it has been protected, and the prescribed information has been given to the tenant. If this has not been done, any section 21 notice cannot be validly served.
Additional Information
If the tenancy started on or after 1 October 2015, the landlord will need to provide the tenant with additional documents before a section 21 notice can be validly served. These documents include; the correct version of the How to Rent Guide, an Energy Performance Certificate, and a Gas safety certificate.
HMOs and Property Licences
A section 21 notice will also not be validly served if the property in question is required to have an HMO or selective licence and does not have one. The landlord would first have to apply for the appropriate licence from their local authority and then serve the section 21. Alternatively, landlords can apply to their local authority for a temporary exemption notice in order to serve a valid section 21. The landlord should always check that they have the correct licence for their property before serving a notice. You can find information about the various property licensing schemes in London on the London Property Licensing website.
How do I serve a valid section 8 notice?
When serving a section 8 notice the landlord will need to demonstrate that one of the grounds in Schedule 2 of the Housing Act 1988 has been fulfilled. A section 8 notice must be in the prescribed format and state that it is for the tenant, what grounds are being relied on, why they are being relied on, and how long the tenant has to fix things before Court proceedings will be commenced.
Often the most commonly used grounds for landlords is ground 8. This is used where the tenant is in at least two months’ rent arrears (or eight weeks if the rent is paid weekly). If a valid section 8 notice has been served on ground 8 and the tenant has at least 2 months or 8 weeks rent arrears
both at the time the notice was served and at the hearing, the Court must make a possession order.
Possible Counterclaims
Before serving a section 8 notice for rent arrears landlords should think about whether it is possible for the tenant to raise a counterclaim to a section 8 notice. Tenants can raise a counterclaim on the basis that the deposit was not protected, or that there is significant outstanding disrepair at the property.
If the deposit has not been protected by the landlord within 30 days of the tenancy agreement and the prescribed information given to the tenant by the same time, the landlord can face penalties of up to three times the deposit being awarded to the tenant. It is therefore essential if a deposit has been taken and this has not been done, to weigh up how much the tenant may be awarded, and how much the rental arrears are.
We can advise landlords on how best to protect their position before serving notices if they are concerned that tenants will make allegations about disrepair or failure to protect a deposit.