Which Notice To Use?
Notice of possession Assured Shorthold Tenancies All assured tenancies entered into on or after 28 February 1997 are (except for a few limited exceptions) automatically assured shorthold tenancies (‘AST’s). It is therefore likely that your tenancy agreement with a residential tenant is an AST. Broadly speaking, there are two types of notice which may be used to recover possession of a property let on an AST: a “section 21 notice” (a no fault notice) and a “section 8 notice” (a fault notice).
Section 8 –
“fault notice” A section 8 notice is generally used where the tenant is in breach of terms of the tenancy, most commonly unpaid rent. The section 8 notice informs the tenant that the landlord intends to bring proceedings for possession of the property on the grounds specified in the notice. The notice states the earliest date that proceedings will begin.
Generally, the most common grounds relied upon are that the tenant has accumulated substantial rent arrears at the time of deemed receipt of the notice and at the date of the hearing; the tenant has persistently delayed in paying the rent due; and any obligation of the tenancy (other than non-payment of rent) has been broken.
After expiry of the notice you may issue court proceedings for recovery of possession from the court. If a claim is not issued within 12 months of the notice being served, it becomes invalid and a fresh notice will need to be served before proceedings can be issued. The notice is in a prescribed form and you must use the latest form.
For detailed advice on all residential possession proceedings please contact Hector & Finch on 0203 937 8000
Section 21 –
“no fault notice” The tenant does not need to be in breach of the terms of the tenancy for service of this notice. After the expiry of the notice, you can issue court proceedings for an order to recover possession from the court. There used to be two types of notice depending on whether you are terminating: 1) a fixed term tenancy or a tenancy that has continued after expiry of the fixed term; or 2) a tenancy that has only ever been a periodic tenancy e.g. a tenancy that runs from one period to another such as from week to week, month to month or year to year and has never had a fixed term. In some cases the landlord will need to calculate the last day of a period of a tenancy and this date will need to be specified in the notice.
Since 1 October 2015 (and for new tenancies commencing on or after 1 October 2015) there is now only one type of section 21 notice to serve on a tenant and it must be in the new prescribed form. Legal advice should be sought on the appropriate notice and its validity. In order to ensure that you serve a valid notice you must check that you:
1. have properly protected any tenancy deposit (if appropriate) or returned it to the tenant;
2. have provided the tenant with the requisite information about the deposit known as ‘prescribed information’;
3. have (at no charge to the tenant) provided the tenant with an energy performance certificate (EPC) (for tenancies commencing on or after 1 October 2015);
4. have provided the tenant with a valid gas safety certificate (for tenancies commencing on or after 1 October 2015);
5. have provided the tenant with the leaflet published by the Department for Communities and Local Government entitled ‘How to rent: The checklist for renting in England’ (for tenancies commencing on or after 1 October 2015);
6. have not served a notice before you are entitled to do so. You are not entitled to serve a section 21 notice on a tenant where they have resided in the property for 4 months or less (for tenancies commencing on or after 1 October 2015);
7. have licensed the property if you are obliged by your local authority to do so; and
8. are not prevented from ‘retaliatory eviction’, also known as ‘revenge eviction’(for tenancies commencing on or after 1 October 2015). . Failure to ensure all the requirements are met will render a s21 Notice invalid.
In addition, there is an obligation on private rented sector landlords in England to install smoke and carbon monoxide alarms in premises used as living accommodation. This will apply even if the tenancies were granted before 1 October 2015. There is however an additional obligation in relation to tenancies granted on or after 1 October 015 to ensure that those smoke and carbon monoxide alarms are in proper working order at the start of any new tenancy. Failure to comply with this legislation could result in a penalty charge of up to £5,000 per breach but this will not affect the validity of a s.21 notice.
Notice To Quit
A notice to quit does not apply to tenants that are under an assured shorthold tenancy. A notice to quit is generally served on non-housing Act tenancy, licence or a common law tenancy. It is crucial that you serve the correct notice, as an incorrect notice would mean starting the eviction process from the beginning again. If an doubt seek advice from our consultants for FREE on 0203 937 8000
A notice to quit is a legal written document where the landlord requests his/hers tenant(s) to quit the premises leased, and to give possession of the leased property back to the landlord, by a specific date mentioned. More often than not it is usually 30 days.
A notice to Quit should contain – demand of possession should contain a request from the landlord to the tenant or person in possession to (not including trespassers) quit the premises which he holds from the landlord, (which premises ought to be particularly described, as being situate in the street a city or place, or township and county).
When the premises is in possession of two or more as joint-tenants or tenants in common, the notice addressed to all, and served upon one only, will. A notice addressed to one however will be deemed as valid service.
Service Of Notice
Unlike many other companies, Hector & Finch will serve all notices within the same day of being instructed as we understand that getting your property back is a priority. For good practise we serve all notices by two methods:
- 1st Class post.
- 1st Class Recorded.