Employing a Section 21 Notice to end an Assured Shorthold Tenancy - Look Before You Leap

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Turbulent clouds

It may surprise you that the Chairman of the London Association of District Judges recently commented that a staggering seven out of ten Section 21 Notices to Quit are being thrown out of Court because they are invalid.

The message to Landlords could not be clearer - this is not a straightforward area of law and the motto "Look Before you Leap" could not be more accurate.

Have you protected your tenant's deposit?

Suit of Armour

You must protect your tenant's deposit by transferring it to one of the three Tenant's Deposit Protection Schemes:

If you serve a Section 21 Notice without having first protected the deposit and sending your tenant prescribed information relating to this, your Notice will be invalid. Furthermore, any County Court application for possession will be unsuccessful and you may be ordered to pay costs.

Your tenant can also make an application for deposit compensation of 3x the deposit. It doesn't stop there. Even ex-tenants can apply for this compensation under current legislation. You have been warned.

Have you provided a UK address to your tenant where notices may be served on the landlord?

Old Map of the UK

Failure by landlords to provide a UK address has resulted in Possession Notices being unenforceable.

If you permanently live overseas, you must have a UK 'Care Of' address (for example, solicitors, managing agents, family) that you can use.

Bundled Books

Know the difference between an Assured Shorthold Tenancy and a Periodic Tenancy

Knowing the difference is instrumental in serving a valid Section 21 Notice.

Ask yourself this: has the Assured Shorthold Tenancy Agreement expired?

  • If it is ongoing, it will usually be an Assured Shorthold Tenancy.
  • If it has expired, it will usually be a Periodic Tenancy.

This information defines the date you require possession as stated in the Section 21 Notice. Get this date wrong and your Notice may once again be invalid.

The Two Month from Service Rule - a Common Mistake

Old Clock Face

As well as applying your understanding of the rule above, you must also give a full two months' notice of possession. This starts from the date the notice is received by the tenant.

Many landlords appear unaware that this is sometimes not the date that the Notice was sent and accordingly do not account for it in their calculations. This is a fatal mistake.

Consider how and when your Section 21 Notice is going to be served, so that you can state a valid possession date. The favoured approach is to despatch it by courier if there is any likelihood of a dispute.

If the tenancy is periodic, two months' notice must be provided from the start of the next tenancy period. In practice this often means that more than two months' notice must be provided

Ruined House

Housing Disrepair - the lurking Achilles heel

Does your tenant have a history of claiming housing disrepair?

Have your tenant's solicitors been in contact with you to discuss maintenance issues?

Have Environmental Services formally requested you carry out remedial works or maintenance?

If you answer YES to any of the above, be warned that you may face a Housing Disrepair Counter Claim to your claim for possession in the County Court should your tenant fail to leave the property voluntarily. This will inevitably cause delay and additional costs. Although you cannot prevent such a Counter Claim, you can exercise damage limitation by ensuring that any statutory maintenance and repair obligations have been complied with.

This article was provided by Pro-Leagle - The Law Firm for Laymen

Written by Corinne Tuplin (LLB, LPC) Solicitor, April 2011