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A reminder of the Section 21 procedure now that COVID restrictions have ended

Now that the possession procedure has reverted to the pre-COVID position, it is important to remind ourselves how to obtain possession of a property under Section 21 of the Housing Act 1988 (the “Act”).

What type of tenancy is in place?

Firstly, it important to note that the Section 21 procedure will only be available for landlords with a tenant under an Assured Shorthold Tenancy (AST).

For a tenancy to qualify as an AST:

  1. It must be an assured tenancy as defined in the Act;
  2. The tenancy must have started on or after 15 January 1989;
  3. The property must be the tenant’s main accommodation; and
  4. The landlord must not live in the property.

Also, if the tenancy falls within the following exclusions, it will not be an AST:

  1. The rent is more than £100,000 or less than £250 (£1,000 in London) a year;
  2. It is a business tenancy, student letting or holiday letting;
  3. It is a tenancy for no rent; or
  4. The landlord is a local council.
The Landlord’s Obligations

If you have established that the tenancy is an AST, then you will need to ensure that you have complied with your obligations as a landlord.

At the start of the tenancy, the landlord must:

  1. Serve the tenant with an EPC;
  2. Serve the tenant with the “How to Rent Guide”;
  3. Serve the tenant with the Gas Safety Certificate in force at the beginning of the tenancy;
  4. If there is a deposit, protect the deposit with an authorised scheme and serve the tenant with the prescribed information;
  5. If the property is a “house in multiple occupation”, ensure that the relevant licence has been obtained.

It is important to note that the landlord will need to obtain a Gas Safety Certificate for each year of the tenancy and furnish the tenant with copies prior to serving the Section 21 notice.

If the landlord has not served the EPC, How to Rent Guide and the Gas Safety Certificate at the start of the tenancy, it will not stop the landlord from serving a Section 21 notice, provided that:

  1. The EPC and How to Rent Guide are served prior to serving the Section 21; and
  2. A Gas Safety Certificate was in place at the start of the tenancy and it is served before the Section 21 Notice. See my article here for more information on this point.

If all of the above has been complied with, the landlord will be able to serve a Section 21 notice.

The Section 21 Procedure

The Section 21 notice can only be used to bring an AST to an end on, or after, the end of the contractual term of the tenancy (unless there is a break clause in the tenancy agreement letting the landlord end the tenancy sooner) and it cannot be served within the first 4 months of a tenancy.

Now that the COVID restrictions on possessions have been lifted, as of 1st October 2021, the landlord must only now give 2 calendar months’ notice.

The two months’ notice must end on the last day of the tenancy or, if the tenancy has become a statutory periodic tenancy, then the notice period will simply be two months from the date the notice is served.

However, if the AST has become a contractual periodic tenancy (i.e. there is a clause in the AST that the tenancy will continue to run month to month or week to week etc.), then the notice will depend on what is written in the contract. It is critical that, if the tenancy is a contractual period tenancy, the notice is served in accordance with the terms of the contract. If this is overlooked, the notice could be defective.

The complexity of the Section 21 procedure can be underestimated. However, provided that all of the above has been complied with and the correct notice period has been given, the court must order possession as there is no need to prove any ground for possession.

If you are a landlord or a tenant and require any advice, then please contact Alexander Clarke in our Real Estate Disputes team on +44 7557 804715 or email at alexanderclarke@boltburdon.co.uk

You can also contact one of our other solicitors in the Real Estate Disputes team here.

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