Important legal update: Section 21

What are the changes?

Currently (pre 1st October 2018), the law states that a landlord issuing a Section 21 notice must provide two months’ notice to any tenant living in a property under an AST or periodic tenancy agreement if the agreement was signed AFTER OCTOBER 1st 2015.

The new rulings (in place POST 1st October 2018) states that all tenancies, even those signed BEFORE OCTOBER 1st 2015 are now subject to these rules, making the issuing of a Section 21 simpler, with one rule for every landlord.

The paperwork has been simplified too.

Every Section 21 must now be served using a Section 21 6a form. The previous notices, s.21 (1)(b) and s.21 (4)(a), which were used for fixed term tenancies and periodic tenancies are now not acceptable.

Whilst we’re here, let’s take the opportunity to run over the ins and outs of a Section 21…

What is a Section 21?

A section 21 notice is a document served to a tenant by the landlord (or agent) giving them advance warning of the landlord’s intention to regain possession of the property.

A section 21 is not an eviction notice, it is simply a document that notifies the tenant that after a two-month period, the landlord wishes to exercise their legal right to regain possession of their property, and that they wish for the tenant to vacate the property at the end of this time frame.

The section 21 can be used at the end of a contract, at a break clause or during a periodic tenancy (although not if it is less than six months since the tenancy started), and it is important to remember that the tenancy does not legally end until the tenant surrenders the tenancy.

Can I still use a section 21 to regain possession of my property with the changes?

Absolutely. You must simply make sure that you are using the correct form (S21. 6a) and that you have ticked all the legal boxes leading up to serving the notice. If you are not compliant with all of the landlord legislation, you will find that your section 21 will not be valid, and you will not be granted possession of your property.

How do I serve a Section 21?

There are a few ways that you can serve a section 21, it is up to you to choose the option that is most appropriate for you, and your tenant. Serving may sound like a technical term, but it simply means delivering the notice to your tenant.

The key to serving a notice successfully is making sure that your tenant has received the notice, and that you can prove that they did, should you have to.

Hand delivering the notice to the tenant: one of the most common ways to serve a S21 notice is to do it in person. This gives you the opportunity to explain to your tenants exactly what the notice means, and why you are having to service it. If you have a good relationship with your tenants, this can be a great way forwards, as it can open conversations about how you can work together moving forwards. It is important to remember that you must be able to prove that you have serve d the document though, so if you choose to hand deliver the notice to the tenant, take someone with you who can act as a witness. Your witness, who should be over 18, and not under the influence of alcohol or drugs, then must sign a witness statement agreeing that they saw you (your name) delivering the document to your tenant (their name) at the address (address of property) at X date (date and time of deliver). They should be prepared to sign this document, and if necessary, agree in court that they were there and saw you serve the notice.

Hand delivery through the letterbox: A great way to make sure theta the notice makes its way to the tenants, posting the notice through the letterbox of the property is a favourite with many landlords. Do be sure to have your witness on hand for this option too though. It is also a great idea if possible to take a photograph of you serving the notice, and also pop a follow-up email across to your tenant letting them know that you have served the document.

Post: there are a few postal methods you could attempt, some more successful than others. If you visit your local post office you can ask for the notice to be sent with proof of postage. Keep the proof of postage slip that you will be given, as this will prove that sent the document. It isn’t wise to send via post without proof of postage, as you have no documentation showing that the notice has been served. Also, don’t risk sending the document via recorded delivery. If your tenant refuses to accepted and sign for the recorded delivery item, you have not officially served the document.

Email: As the entire lettings process becomes more digitally focussed, it is only logical that you can serve a section 21 via email too. If you choose to do this, make sure that the email you send si a fresh email (not part of a chain) and clearly titled, stating that the information is important. You don’t want your tenant deleting this by mistake! You can also add ‘read receipts’ onto most emails now, which send an alert to your email when the email has been opened by your tenant. This may be a good idea to set up.

What form must I use to issue a Section 21?

All landlords must use a Form 6a as of the 1st October 2018. You can download this here: https://www.gov.uk/guidance/assured-tenancy-forms#...

Are there any more legal requirements to issue a section 21?

Afraid so!

In order to issue a section 21 correctly, you have to make sure that you have first complied with a number of elements of landlord legislation throughout the tenancy, this isn’t something that you can just whip out of your hat at a whim.

Of course, as a law-abiding landlord, you should have no problem ticking off all these points, but just in case, here’s a quick run though of everything you need to eb doing to make sure your section 21 goes through smoothly. If you have missed any of these vital points you may find yourself with a S21 that won’t budge:

• You must have provided all tenants with a copy of the property’s up-to-date EPC, current gas safety certificate (if relevant) and the most recent copy of the government issued ‘How to rent booklet upon them moving into the property
• A registered Gas Safe Engineer has carried out an annual gas safety check on the property, and you have provided your tenants with a copy of the resulting certificate within 28 days of the check.
• You have a minimum of two years’ worth of gas safety certificates for the property stored safely
• If you have taken a deposit, the deposit has been properly protected in a government scheme and everyone who has contributed to the deposit has been issued with Prescribed Information.
• If your property, or you as a landlord, require a licence, you must make sure that all licensing is in place and that your tenant has been issued with a copy of the license.

There are instances when, even if the above is all in place, you will be unable to serve a section 21:

• If your local authority has served an improvement notice on the property within the last six months
• If your local authority has served a notice on the property in the last six months saying that they will carry out emergency works on the property

Can I issue a Section 21 straight away?

No. A Section 21 cannot be issued until at least four months after the tenancy first starts, giving notice for the tenant to leave at six months.

If your tenant pays their rent quarterly, or ever six months, they must be given one full rental period of notice.

How long does a s21 last when it has been served?

A Section 21 notice lasts for six months once it has been served. If you don’t start court proceedings within this time, you will have to start the process again.

Remember though, you must give your tenant the correct amount of notice to vacate – it may not be necessary to start court proceedings until you reach ‘d-day’, the tenant may be happy to vacate the property themselves.

What makes a s21 invalid

There are a few instances that can invalidate a Section 21 notice. These include:

• Getting the details on the form wrong could invalidate the document immediately, so check, check and check again.
• Failing to comply with any of the legal requirement’s noted above, so do make sure that you are 100% on the ball. To check that you are fully clued up on the most common landlord legal issues, you can log in to a free webinar looking at the ten most common mistakes, which is taking place on Tuesday, October 2nd 2018 – you can register for free here
• Giving your tenants less that the required notice period

Any more changes in the pipeline?

Might we one day see Section 21s scrapped in England altogether, bringing legislation in line with the model now in place in Scotland? At the Labour Party Conference last week, Shadow Housing Secretary John Healey announced Labour’s desire to scrap the fault-free possession notice altogether (more about this here - https://www.urban.co.uk/landlord-university/landlo... ). Whether these bold plans will come to fruition is yet to be seen, however it may be that the future is not set in stone for Section 21s.