Landlord s21 notices – are rent arrears necessary?
I am prompted to write this Urban Myth post as it seems, from reading comments on the internet, that Ms Butler, the landlord in a tent, may have given this as the reason why she was couldn’t serve a section 21 notice on her tenant.
Irrespective of whether Ms Butler actually said this or not, I think it is important that I discuss and correct the misunderstanding which some people may have about this.
When a landlord evicts a tenant (assuming it is an assured shorthold tenant), first has to serve a possession notice. This must set out the legal reason why he is asking the tenant to leave. There are two sorts of notice.
- Notices served under section 21 of the Housing Act 1988, and
- Notices served under section 8 of the act, which must cite at least one ‘ground’ (which are listed in schedule two).
The most commonly used ground is ground 8, the mandatory rent arrears ground.
Section 8 notices based on ground 8, the rent arrears ground
The rent arrears ground provides that if at the following two dates:
- the date you serve the notice, and
- the date of any subsequent court hearing
your tenant is in arrears of rent of at least two months/eight weeks or more, the Judge HAS to grant you an order for possession.
The notice (which has a prescribed format) must give a minimum notice period of two weeks, after which (assuming the arrears have not been paid) you can issue proceedings. This is different from section 21 claims.
Section 21 claims
A section 21 notice can be served at any time, provided the tenancy deposit has been properly protected (and the notice giving the prescribed information served) and the property does not need an HMO license. It must
- give the tenant not less than two months notice
- not end before the end of the fixed term (so if it is served towards the beginning of the term, the notice period will be much longer than two months), and
- say it is served under section 21.
There are slightly different requirements if it is served after the end of the fixed term (discussed here). Then once the notice period has expired, if the tenant is still there, you can start possession proceedings immediately.
There is a special court process you can use, called the accelerated procedure, which will take about six to ten weeks, depending on how quickly the court does its paperwork.
The important point about section 21 however is that it allows you to evict your tenant as of right, even if they have been a perfect tenant and done everything they should. The Judge will just be looking to see that :
- the tenancy is an AST (the procedure can only be used for ASTs)
- the fixed term has ended
- any deposit has been properly protected and the notice with prescribed information served
- HMO landlords who need a license, have got one
- a properly drafted section 21 notice has been served , and
- the notice period has expired
If all the boxes on the list can be ticked, then the Judge will grant a 14 day order for possession.
Landlords renting their own home
Landlords renting out their own home in circumstances where they know they will want it back on a particular day, should serve a section 21 notice at least two months before the fixed term ends. Then, if the tenant fails to move out, they can issue proceedings for possession immediately.
It will not be necessary for the tenant to be in arrears of rent.
For people reading this post for the first time, I should point out that the second link in the first paragraph was to a very long thread (about 30 pages) on Martin Lewis’ money savers forum, which was all about the Suzy Butler case.
It has now been taken down.
Hi I am a tenant who’s ast ran out in nov 03 i have been told by a friend that this now has turned into an assured is this correct? My landlord is wanting to move back in to this property and has told me to leave in a matter of days where do I stand?
I suspect that you will still have an assured shorthold tenancy, but that does not mean your landlord can tell you to get out in a few days! She should serve a possession notice and the (if you can’t leave) get a court order. If she tries to force you this is harassment and unlawful eviciton.
Have a word with Shelterline on 0808 800 4444. Or speak to the Housing Officer at your local authority who are the prosecuting body for unlawful eviction offences (NOT the police).
The section 8 part of the article is confusing… in the HA 88 it only relates to assured tenancies (pre 96)not AST!
An assured shorthold tenancy is a type (or sub group) of assured tenancy, not a different type of tenancy altogether.
You can use both section 8 notices and the seious rent arrears ground for both assured and assured shorthold tenancies and it is not limited just to pre 1996 tenancies.