THE FIRST STAGE - PRE-EVICTION COMPLIANCE
The time of inception of the AST is crucial for every landlord. There are certain onerous pre-requisites which if ignored at the beginning would deprive the landlord of the option of a section 21 eviction.
The law deprives a landlord the option of a section 21 notice:
(a) During the first four months of the tenancy (but where the tenancy is a replacement tenancy, the four-month-period is calculated by reference to the start of the original tenancy and not the start of the replacement tenancy see section 21(4B) of the Housing Act 1988);
(b) Where the landlord is prevented from retaliatory eviction under section 33 of the Deregulation Act 2015;
(c) Where the landlord has not provided the tenant with both current copies of an energy performance certificate and gas safety certificate;
(d) Where the landlord has not provided the tenant with the Ministry of Housing, Communities and Local Government’s publication “How to rent: the checklist for renting in England”
(e) Where the landlord has not complied with the tenancy deposit protection legislation namely ensuring the tenant’s deposit:
i. Is not more than 5 weeks' rent;
ii. Is protected in a scheme
iii. Was protected not more than thirty days after inception of the most recent contract.
(f) Where a property requires a license but is unlicensed in relation to Houses in Multiple Occupation (“HMO”) or
(g) Where the landlord is prevented under section 17 of the Tenant Fees Act 2019. (NB No section 21 notice may be given in relation to a tenancy where a landlord has breached section 1(1) or Schedule 2 of that Act so long as all or part of the prohibited payment or holding deposit has not been repaid to the relevant person or applied to the rent or deposit with the consent of the relevant person.)
Resultantly, to retain the prerogative of evicting a tenant for no fault of their own, it is key to comply with the above pre-requisites at time of entering of the contract or such other time as may be prescribed.
THE LATTER STAGE - EVICTION NOTICE SERVICE
The other crucial time in respect of evicting a tenant is the time at which the landlord would want to evict the tenant. The decision as to which notice to adopt is dependent primarily on whether there are grounds for the intended eviction, and if so, what the grounds are?
As aforementioned a section 21 notice is appropriate where the landlord does not have particular grounds for eviction. Suffice it to say, the landlord, in that case, should check for their compliance with the aforementioned checklist.
Prior to the outbreak of the pandemic, a landlord had to give a tenant 2 months’ notice to evacuate before instigating legal action to achieve the same. However, due to the current COVID-19 virus, the timeframe for a section 21 notice has been fluctuating throughout different periods of the year.
This is encapsulated as follows:
Time of Year with Minimum Notice Period in 2020
Where a section 8 notice is concerned the landlord will be required to allege certain grounds for evicting the tenant. By far the most common ground for eviction is rental arrears or delay in payment of rent. However, the particular formalities to observe in issuing the notice must be informed by the grounds alleged.
Amongst the formalities to be considered are the time frames to be observed. The scope of neglect that will suffice to obtain an eviction order for failure or delay in settling rentals is established in Schedule 2 to the Housing Act as follows:
Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing -
(a) If rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid;
(b) If rent is payable monthly, at least two months’ rent is unpaid;
(c) If rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and
(d) If rent is payable yearly, at least three months’ rent is more than three months in arrears.
and for the purpose of this ground "rent" means rent lawfully due from the tenant.
Some rent lawfully due from the tenant -
(a) Is unpaid on the date on which the proceedings for possession are begun; and
(b) Except where subsection (1)(b) of section 8 of this Act applies, was in arrears at the date of the service of the notice under that section relating to those proceedings.
Whether or not any rent is in arrears on the date on which proceedings for possession are begun, the tenant has persistently delayed paying rent which has become lawfully due.
NB: It is important to note that where the tenant remedies their indebtedness to the extent that it no longer meets the thresholds contemplated above as at the date of the hearing then an order for eviction will become unwarranted until the indebtedness meets the said thresholds.
Having established whether the tenant’s indebtedness meets the above criteria, the next consideration is the time frame prescribed between issuance of notice and instigation of legal action. The required notice currently depends on the degree of indebtedness of the tenant. This is encapsulated as follows:
Time of Year, Reason with Period of Notice in 2020
Once the above requirements are met legal action for eviction can be instigated using either the section 8 procedure or section 21 route or both. The section 21 route though onerous is advantageous in that it allows the landlord to claim possession without the need to cite grounds. However, the section 8 route is usually faster than the section 21 route given the often-shorter periods of notice synonymous with a section 8 notice. Even better is pursuing both routes as the two will run simultaneously thereby giving the landlord more prospects of success in prosecuting eviction. As landlord lawyers, we prefer using both notices. We discuss this in more detail in a separate article.
If you wish to seek clarity regarding the best way to proceed, feel free to get in touch with us. Our lawyers are committed to helping you. Contact us for a free consultation with one of our expert lawyers.
- Julie Condliffe (SRA Regulated Solicitor, SRA ID : 518637)
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