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.
The possession notice service on Landlord Law has very detailed guidance on working out the correct expiry date. You can find out more from this help video on possession notices.
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.
Landlord Law members will find a very helpful article here which discusses all the methods of service in detail and gives guidance.
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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.
Re point 2: There is no ‘proper’ or prescribed form for a s.21 notice. So long as it complies, content-wise, with the requirements of s.21, it could well be in the form of a letter.
Re point 5: I will quote a fellow member of the Landlord Zone forum, who contends that evidence of service may be in the form of an affadavit (something which may be mentioned in the article you link to, but which I cannot access): “When it comes to the service of notices the law apportions the risk to the recipient. This means that the person serving the notice only has to prove that the notice was correctly served, not that the recipient received it. ( See the case of Newborough v. Jones where a notice which was slipped under the door (there was no letter box) but went under the lino was deemed to have been served.) Accordingly any evidence the OP gives to the effect that he did not receive the notice will not help. He needs to prove that the agent did not serve it. The starting point is that the court will give considerable weight to evidence given by affidavit or under oath in court. Something significant is needed to rebut the evidence. Simply suggesting that one would have expected the agent to follow the notice up in some way is not good enough. There may be something in the affidavit that can be picked up on, for example the agent says he posted the notice through the letter box but the door has no letter box. Perhaps the agent said he parked the car outside the property where parking is restricted or difficult. If the notice is dated a Sunday or bank holiday it can be asked if he normally works on those days. If the OP is really lucky he may learn that the agent was away when the notice was “served”. All perhaps clutching at straws a bit, but you never know your luck.”
Thanks for your comments Westminster.
Point 2 – I agree that there is no prescribed form for section 21. It would have been much better all round if there had been as errors in the section 21 notice is a very common reason for possession claims being thrown out by the court. This is why landlords should use a professionally drafted form and take advice on how to complete it. Not send a self drafted letter. It takes such a long time to get a possession claim to court it is simply not worth risking failure by using a non standard home drawn notice. Thats my view anyway.
Point 5. Newborough v. Jones is on of my favourite cases! However it is a bit old now, 1974, although it is a Court of Appeal decision. However my view is that landlords should do everything possible to avoid ANY argument by the tenant. Even if they win after a contested case due to the tenant disputing the service of the notice, that will still be bad news for the landlord as the litigation will cost him and will take a very long time to resolve. Its best to make sure that there CAN be no argument about it.
Thanks for the response, Tessa. I agree it’s best not to try to DIY draft a s.21 notice in letter form, and also to obtain independent evidence of service to avoid arguments, as you say. But I do think it’s interesting that the law apportions risk to the recipient, and worth knowing, particularly in cases where the landlord has failed to obtain additional evidence; it’s still possible that his application could succeed.