Serving notice for possession on a tenant

Industry Insight May 10th, 2019
Serving notice for possession on a tenant

1

My property is let on an Assured Shorthold Tenancy and I need possession of my property – what can I do?

In order to seek possession, you will need to serve your tenant with a notice terminating the tenancy. You can issue them with a Section 21 Notice or a Section 8 Notice, or both, depending on the circumstances. The notice will give a date by which the tenant must give back possession.


2

When can a section 21 notice be served on a tenant?

A Section 21 Notice can be used where the fixed term of the tenancy has come to an end (or will do so in the next two months). It can also be used where the tenancy has no fixed end date (known as a periodic tenancy).  It cannot be served where the tenancy started less than 6 months ago. The notice must give the tenant at least two months to vacate the property.
Before a valid section 21 notice can be served there are a number of statutory requirements a landlord must have complied with. These include the protection of any deposit, providing the tenant with a Gas Safety Record, a valid Energy Performance Certificate and the Government’s How to Rent Booklet.

The list of statutory requirements is lengthy and ever-changing. If you are in any doubt about whether you have complied, you should seek specialist legal advice.

Section 21 repossessions in England

section-21

Source: Ministry of Justice via BBC


3

When can a section 8 notice be served?

A section 8 notice can be served where the tenant has broken the terms of the tenancy e.g. by not paying rent. It may also be served if you need to live in the property yourself. The notice must give between 2 weeks and 2 months’ notice, depending on the terms which they have broken.

Sometimes a landlord will be able to serve both notices and, if the tenant remedies the breach identified in the Section 8 Notice it will still be able to seek possession under the Section 21 Notice.


4

Which notice should I use?

If the fixed term of the tenancy has ended and you have complied with all of the current legislative requirements, it is usually better to service a section 21 notice, as you will be able to use the Accelerated Procedure if the tenant doesn’t leave the property.

If the fixed term of the tenancy has not come to an end, you can serve a section 8 notice as long as one of the Section 8 grounds has been met. These are based on acts of default by the tenant including rent arrears or late payment of rent, and damage to the property. Section 8 may also be preferable if there is a high rent on the property or the tenant is in significant arrears. The rent arrears ground only requires a landlord to give the tenant 2 months to vacate the property before a possession claim can be commenced.

Written by Hollie Wright
Associate
Real Estate Dispute Resolution
Howard Kennedy LLP


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