If you need to evict your tenant you need (in the vast majority of cases) to serve a possession notice first.
This is an important document and if you get it wrong it can mean that your possession claim will get chucked out by the Judge.
Here are some tips:
1. Make sure you are serving the right notice
There are three main notices which can be used
- a section 8 notice
- a section 21 notice, and
- a Notice to Quit
The first two are used for assured and assured shorthold tenancies. The last one should ONLY be used for common law and protected tenancies under the Rent Act 1977.
To know which of the notices you need, you need to know which type of tenancy you have and what type of possession claim you will be bringing.
Note that Landlord Law members can use my Which Possession Proceedings trail which will lead them by question and answer to the correct type of claim for their situation.
2. Use a properly drafted notice
Simply sending the tenant a letter asking them to vacate is not enough. The notice has to be in the proper form and comply with the legislation.
For example section 8 notices need to include ‘prescribed information’ and will be invalid if this information is not on the form.
Landlord Law members can use our document generator software to create a correctly drafted possession notice tailored to their requirements.
3. Give the correct details
The names and the address on the notice needs to match those given in the tenancy agreement. For example if one of the tenants has changed her name, say because she has married the other tenant, you should give both names eg
Mrs Jane Smith (formerly Jane Jones)
If one or more of the tenants named in the current tenancy agreement hves moved out, you should still put their name on the notice. They are still technically a tenant and after all it is always possible that they might move in again.
In any subsequent possession proceedings if the details on the notice differ in any way from those on the tenancy agreement, the Judge will want to know why, and it might cause problems. So make sure the two documents match.
4. Make sure that the expiry date on the notice is correct
This is very important as if you get it wrong it could invalidate the notice, meaning you will not be able to use it in court proceedings.
If the notice is a section 21 notice where the minimum notice period is two months, you could lose a lot of time if you only find out the mistake at the end of the notice period, and have to serve it again.
You also need to allow sufficient time for the notice to be served and sometimes the ‘deemed service’ rules may mean that your notice is deemed served later than you think.
The rules relating to the expiry date for section 21 notices can be particularly difficult and many landlords have lost their case through putting the wrong date.
5. Make sure that you will be able to prove that the notice has been served
To succeed in a claim for possession it is ESSENTIAL that you are able to prove service of your possession notice.
The best way to do this is to serve the notice yourself on the tenant personally AND have an independent witness. Getting the tenant to date and sign a copy of the notice is also a good idea but many tenants will refuse to do this.
In particular, don’t serve the notice by ordinary post (how will you prove it was ever delivered if the tenant says he has not had it?) or get it served by your temporary assistant who is due to return to Australia before the possession proceedings.
If you know what you are doing, drafting and serving possession notices is relatively straightforward. However, if you are not sure, it is essential that you get some help.
Getting it wrong can prove very expensive. For example, if you have a tenant who is not paying rent, and eviction proceedings are delayed due to having to re-serve the notice.
The Landlord Law notices have been tried and tested over many years, and have been used hundred of times in court claims for possession. Find out more here.