I am getting more and more enquiries from my blog reading friends on some technical aspects of property management. In the past I’ve avoided writing about these types of questions on the Blog by answering them directly. I find writing about the Walsall property market more interesting but people power has to prevail and I feel I must provide the readership what they seek.
There are various reasons why you may need to recover possession of your rental property. Below is an enquiry I received recently and my answer. Hope you find it informative and as always I welcome your feedback. Do let me know if you have any burning questions you would like me to answer in a similar vein and I’ll do my best to accommodate.
I rented my property out when I moved into my husband’s house about 6 years ago and we are now going through a divorce. I need my property back as I need to move in as soon as possible, so I know I will need to evict the current tenants. How do I correctly serve a notice?
I am sorry to hear about the situation you are in. You are not on your own; this does happen from time to time. There are two types of legal notices you can serve your tenants dependent upon the circumstances. The commonly known Section 8 Notice is the one you would use if the tenant owed you more than 2 months’ rent arrears however, as this reason is not applicable to you I will talk about the other form of legal notice called a Section 21 notice.
First thing first…you must follow a set process when serving a section 21 notice to ensure it is valid. If you fail to do this, the possession claim can be dismissed by the courts and you must start the process all over again.
What is a Section 21 Notice?
This is probably the most common way to regain possession of your Walsall property. It’s often called a “no fault’’ possession notice as a landlord does not have to give a reason for taking the property back. A section 21 notice can only be served under an Assured Shorthold Tenancy (AST).
When Can I Serve a Section 21 Notice?
You can serve a section 21 notice within a fixed term so long as the notice expires after the end of the fixed term, or it can be issued when the tenancy is periodic. You can also use an appropriate break clause to end the tenancy early; however this must be included in the tenancy agreement.
For tenancies which started one or after 1st October 2015, or became periodic on or after that date, you cannot serve the notice within the first four months of a six month term tenancy. For these tenancies, you must also use the new Form 6a notice.
Being Prepared – What to do before serving a Section 21 Notice.
The list below contains the mandatory requirements for a section 21 notice to be valid. You must have:
- Protected the deposit correctly
- Served the tenants the prescribed information including the T & C’s of the scheme you use
- An AST agreement in place
- A valid EPC and Gas Safety Certificate
- Allowed the fixed term to come to an end, or used an appropriate break clause to end it
- Served the tenants with the government guide, ‘How to Rent’
If the landlord has not done all six points in the list above, then the section 21 notice will be invalid. The courts may also need proof the notice was served, so having photographic evidence of the letter going through the door of the property or a picture of the tenants accepting the letter by hand helps. Alternatively a certificate of service must be completed.
Click the image below and print it off, use this as your guide to serving a Valid Section 21 Notice.
If your tenants won’t leave after giving them the two months notice then you can apply for an accelerated possession order.
What’s an Accelerated Possession Order?
Usually the tenants will find a property within this time and leave peacefully – especially if you have a good tenant landlord relationship. However, it’s not always the case and further actions may need to be taken.
The accelerated possession procedure in conjunction with a section 21 notice often means landlords don’t have to go to court. A judge looks at the paperwork and, if everything is in order, grants a possession order with no hearing. Landlords can complete a form and submit this (along with other paperwork) online. There will be a fee to pay for this process.
It’s crucial all the paperwork is in order and the Section 21 Notice has been served correctly. If not, a judge may dismiss the case and the process must start all over again. If something is not right, or the tenant puts up a defence (they may argue they never received the notice), a judge can arrange a hearing. But if everything goes well, an order for possession will be granted.
What If Tenants Won’t Leave?
This is very rare; however I have come across this.
If the tenant has decided to dig their heels in and have not left by the date stated on the possession order, you must apply for a Warrant for Possession. This is where a Court will send their appointed Bailiff to gain possession for you by removing the tenant – forcibly if required. There is another fee to pay for this process.
I hope this guide helps. I have handled many Section 21 notices, so if you need a second opinion, feel free to get in touch.
Phone: 01922 311016