Section 21 - a guide for Landlords on how to proceed with Section 21 suring the Covid 19 pandemic
Section 21 & Covid 19
This last year has proved to be a very difficult time for both Tenants and Landlords. The Pandemic has had an impact on many spheres of people’s lives, including rising unemployment and increase in cases of anti-social behaviour. Rent arrears along with social disturbance are amongst the most common reasons for a Landlord to seek possession over his property. The law gives the Landlords a few routes to end a Tenancy. One commonly used option is issuing a Section 21 notice, also known as a “no fault eviction”. With this type of eviction the Landlord doesn’t have to give any reason for seeking the possession over the property.
Section 21 is probably one of the simplest ways of ending the Tenancy. That said, plans to abolish ‘no fault eviction’ process have been laid out in Renters’ Reform Bill in December 2019. At the time of writing the exact date is not known. The recent news only highlights that the Section 21 will remain at least until the pandemic ends. So, for the time being it is still possible to serve the notice to your Tenant.
Section 21 - validity and requirements
The process is quite clear, but before serving Section 21 you need to make sure that all the following points reflect your situation:
1. The Tenancy must be an Assured Shorthold Tenancy. Here is a Government guide on different tenancy types, that will help you determine if your contract is an AST https://www.gov.uk/tenancy-agreements-a-guide-for-landlords/tenancy-types
2. At least 4 months must have passed since the original Tenancy began - Section 21 can not be served earlier than that. Even if the contract was signed for less than 4 months
3. The notice can not expire before the fixed term of the Tenancy has finished, unless a relevant break clause allows for it
4. The prescribed form of notice (Form 6a) must be used and filled correctly - the correct form and the guidance on filling it out can be found on the following website: https://www.gov.uk/guidance/assured-tenancy-forms
5. The proper notice period must be given to the Tenant and that notice period must have expired before you apply for possession order. Information on the current notice period is included in the second part of this article. The notice period differ due to Covid-19
6. If the deposit has been taken, it must have been protected by authorised scheme and the relevant prescribed information served to the Tenant. All the Government approved schemes can be found here: https://www.gov.uk/deposit-protection-schemes-and-landlords. Landlords have 30 days after receipt of deposit to protect it and issue all the documents to the Tenant.
7. No improvement notice has been served regarding the property in the 6 months prior to the Section 21 notice being served
8. You must not have performed a “retaliatory eviction” - an eviction that is a response to the Tenant wanting for you to improve the property (due to health and safety reasons)
9. If you require a licence (mandatory, selective or additional) then you must have at least applied for it
10. You must not have received a prohibited fee under the Tenant Fees Act. The ban on Tenant Fees applies to new or renewed tenancy agreements signed on or after 1 June 2019. For more information on the fees that can be charged, please visit: https://www.gov.uk/government/collections/tenant-fees-act
In addition to all of the above, if your Tenancy began or was renewed on or after 1st of October 2015 you must also provide the following documents:
1. EPC (where you need it). Check if you need an EPC: https://www.gov.uk/energy-performance-certificate-commercial-property/exemptions
2. Gas safety certificate (if gas is connected and used in the property)
3. Latest version of “How to rent, a checklist for renting in England”. The latest version can be found here: https://www.gov.uk/government/publications/how-to-rent. You need to check regularly for the new releases of the guide, as they are not widely announced.
All these documents should be provided before a Tenant moves in, however if you fail providing them beforehand, then make sure you provide them to the tenant at least before you issue the Section 21. The notice will remain valid if you can prove you had all these documents before the Tenancy started, but you have simply not provided them to the tenant.
How to serve Section 21 Notice - Step by Step Process
At the time of writing this article, we are still following the Covid-19 rules. This means that from the 29th of August 2020 in England the minimum notice period is 6 months.
If your Assured Shorthold Tenancy was signed for fixed 6 months then the earliest you can serve a Section 21 notice is on the first day of the fifth month. The notice can be handed over by:
1. Post - with proof of postage. However if you request a signature for proof of delivery the Tenant can simply refuse to accept the letter
2. Put it through the door - Probably the most efficient way. But it is important to have some pictures and video evidence, as well as a witness statement, signed by someone who is not involved in the case
3. Give it directly to the Tenant - again have a witness statement and some photo evidence.
4. Email - you can send the form via email, but this is not advisable, as it is very difficult to prove that the Tenant actually received the email.
Step by step process
You can use the following list as a checklist before you decide to issue the Section 21 Notice.
1. Check the dates on your Tenancy Agreement and make sure you work out the date when you should serve section 21 notice. If you are not sure about the right date, contact us for individual guidance
2. Fill in the required FORM 6a (Notice seeking possession of a property let on an Assured Shorthold Tenancy) - link reminder: https://www.gov.uk/guidance/assured-tenancy-forms
3. Serve Section 21 Notice using your preferred way of delivering the document (in person, via post, email)
4. Depending on the notice period (currently 6 months) you need to wait for the next steps, until the date you have specified that the Tenant needs to move out by
5. If the Tenant moves out on or before the given date, then the whole process ends here. You have gained the possession and this is the most desirable outcome. However, if the Tenant is still in your property you need to follow the next steps
6. Fill in a claim form for possession (accelerated procedure for Assured Shorthold Tenancy) N5B (Please note that there are two different forms for England and Wales. Make sure you use the right one). There is no Section 21 Notice in Scotland. The forms can be found under the link: https://www.gov.uk/government/publications/form-n5b-england-claim-possession-of-a-property-located-wholly-in-england-accelerated-procedure
7. Prepare all the supporting documents that needs to be attached with N5B form. The full list is specified on the last page of the N5B form (page 20)
8. In addition, and it only applies during the pandemic, you need to attach a Notice providing information about the effect of Coronavirus on your Tenants. We have access to the forms that can be used. If you would like to receive one, contact us directly
9. Attach a Witness Statement if you have posted the Section 21 notice through the letter box, or if you have served it in person
10. Attach any sort of proof of postage / delivery if you sent it by post
11. Attach a cheque to cover the application fees, currently in the order of £355
12. Copy all the documents 3 times and send them (with recorded delivery) to the court that is handling such cases in your area. One copy then will be sent to the Tenant, one copy will stay in the court and one will be stamped and sent back to you
13. If all the documents were correctly filled and delivered to the Court, the Court will prepare “Notice of Issue” which will be sent directly to the Tenant along with all the documents you have previously provided. The duplicate of Notice of Issue will be also sent to you. The Tenant then will have 14 days from receiving the Notice of Issue to file a defence
14. After 14 days you can ask the Court to make a possession order, by completing a form attached to the “Notice of Issue” and sending it back to the court.It is possible for the Tenant to file a defence in that period
15. The Court will then decide whether or not make an order without a hearing
16. If there is a hearing, the Court sends a letter with the hearing date. You should always attend the hearing, even if you think your Tenant will not come to the court. It usually takes 10 to 15 mins, where the Judge makes a decision
17. If there is no Court hearing, both parties (you and the Tenant) receive a letter granting or not the possession. The order for possession specifies the date by which the Tenant needs to leave the property
18. In most cases that would be the end of the process, however if the Tenant still rejects to leave you may need to authorise a bailiff to evict him or her. Please note that currently there is an eviction ban, extended up till the 31st of May 2021, which means no evictions can take place, unless there are significant rent arrears (6 months) or any anti-social behaviour take place in the property
Section 21 Case Study - a successful possession during the Pandemic
The general opinion is that the courts are not working, or are working throughout a huge backlog and to get to the court hearing you may be waiting even 1 year. The following case study shows that it is not always true. Here is the timeline and steps of a successful process of granting a possession.
01/08/2020 - Landlord serves Form 6a, asking for possession on the 10th of November 2020. The notice period back then was 3 months, however there were a few days added to those 3 months, to allow time for the Tenant to fully receive the notice.
10/11/2020 - The Tenant is still in the property. Landlord prepares a Claim for possession and sends it to the Court.
04/12/2020 - Landlord receives a “Notice of Issue” from the Court, stating that the documents were sent to the Tenant, giving him/her 14 days to file for defence
21/12/2021 - after allowing 14 days, Landlord sends to the Court the “Possession Order”, asking to grant the possession
21/01/2021 - Landlord receives a “Notice of Hearing of Application”. The Tenant has filed for Defence, and in this case the Judge decided to proceed with a hearing, which was scheduled for the 16th of February 2021
Between the date of the last letter and the hearing, Tenant’s circumstances changed resulting in vacating the property
16/02/2021 - hearing date. Despite the fact that the Tenant has moved out, the court hearing took place. Both Landlord and Tenant attended. It resulted in granting the possession
24/02/2021 - Landlord received a letter confirming granting the possession
The whole process took around 6 months. The court was working, the hearings took place and the communication with the Court was effective. It helps if you fill in all the forms correctly and you double check that you have sent all required documents. Incomplete application may prolong the whole (long enough) process.
Every case is different, some of them may not have to go to the court hearing stage, and some of them can drag on for months. It is a very individual matter, however the core process and Landlords responsibilities remain the same.
Should you need more guidance do not hesitate to get in touch. If your case requires more specialist knowledge we can always point you to other resources and forums that have been of great help to us.
Do you have any questions? Get in touch, we are happy to help!