You can draft the section 21 notice yourself, or you can instruct lawyers to do this for you. If you are going to draft a section 21 notice yourself, make sure you use Form 6A for England (Covid-19 version if it applies). Use Welsh section 21 notice if the property is in Wales.
At the time of serving a notice, check to see what notice period is the correct “Notice period”. It is crucial to ensure the dates on the section 21 notice are correct. The section 21 notice also has a self-life and you must issue court proceedings before a particular date, if not any accelerated possession claim will fail. Currently, under COVID-19 legislation, section 21 notice in England is valid for 10 months from the date the tenant is deemed to have received the notice.
Sometimes a section 21 notice is also referred to as a notice to quit.
What can make a Section 21 notice invalid?
You cannot serve a section 21 notice during the first four months of the assured shorthold tenancy.
When serving a section 21 notice, you must use a Form 6A which is a prescribed document.
The notice period for section 21 cannot be less than two months (under COVID-19 – is six months).
Your section 21 notice may be invalid if the following apply to you:
Council Improvement Notice
- The council has issued an “Improvement Notice” or “Notice of Emergency Remedial Action” within the last six months. If this applies to you, then you will not be able to serve a section 21 notice.
If you feel the notice is wrong and should not have been served, you could consider appealing the notice. You must do it within the period to appeal. Do not appeal if you do not have grounds to do so.
If you cannot appeal the “Notice of emergency Remedial Action”. In that case, you will have to wait for 6 months before you can serve the section 21 notice.
Breach of Tenant Fee ban
- You, or your agent, has charged fees to the tenant unlawfully under the tenant fee ban, and these have not been repaid to the tenant. If this applies to you, then you will not be able to serve a section 21 notice.
How to remedy the tenant fee ban breach under the Tenant Fee Act 2019? Return the money, read our blog regarding this.
No Rent Smart Wales License
- The property is in Wales and has not been registered with Rent Smart Wales. The landlord or the letting agent does not have a licence (Applicable in Wales only)
How to remedy the Rent Smart registration breach or other breaches under Rent Smart Wales?
Read the guidance from rent smart and comply with the requirements of RSW.
Failed to provide a “How to Rent Booklet”
You failed to issue the tenant an up to date “How to Rent booklet” at the start of the tenancy.
If you failed to provide the tenant with a “How to rent booklet” then you can download this from our services page free of charge under Pre-tenancy. Give this to the tenant, then serve a section 21 notice provided you are fully compliant with all the other requirements in this list.
Failed to Protect the Deposit
Forgot to protect the tenants deposit money, in 30 days of receiving the deposit money.
How to remedy tenant deposit?
Return the deposit to the tenant by bank transfer. If you do not have the bank details and or the tenant is refusing to take the deposit. Some tenants think they are savvy and will not accept the deposit back to prevent you from serving a section 21 notice.
If the tenant has rent arrears, then offer to put the deposit monies towards the rent arrears. You must have evidence the tenant has agreed to this.
Failed to provide Tenant with the deposit documents
If you failed to provide the deposit documents within 30 days of taking the deposit, you should consider the same process above under the heading “Failed to protect the deposit”.
Failed to obtain a License
Do these apply to you: local and national licensing e.g., HMO licence or a local Selective Licensing?
If you failed to obtain a license when required, you would need to get this from the council. Once you have this, then you can consider serving a section 21 notice.
Failed to provide the tenant with a gas safety certificate
If you do not have a valid gas safety certificate. In that case, you must get a valid gas safety certificate before serving a section 21 notice.
Failed to provide the tenant with an EPC
All landlords with assured shorthold tenancies in England also need to have given the tenants an energy performance certificate (EPC). The Deregulation Act requires that the EPC be issued to the tenant before the tenancy begins.
If you do not have an EPC, you should obtain an EPC and copy the tenant. An EPC is valid for 10 years. Once you have an EPC and are fully compliant with all the applicable things on this list, you can consider serving a section 21 notice. You can order an EPC which is a discounted service from PropCert.
Section 21 Notice FAQ
Can you serve a section 21 notice by email?
Check to see what the tenancy says regarding service of notice. Serving notice by email can be contentious and should be avoided.
If you have served a notice by hand or posted the notice by hand, you can as a backup, serve it by email too.
Generally, if section 21 notice is served by email, it will be deemed active on the day it was sent. However, it must be submitted before 4.30 pm on a working day. If you are going to serve a section 21 notice by email, it must be sent after 4.30 pm; it will be deemed to be served, on the next working day.
Can you serve a section 21 notice at the start of the tenancy?
No, you are not permitted to serve a section 21 notice of an assured shorthold tenancy during the first four months.
When can you not use a Section 21 notice in England?
You must not use a Section 21 notice if any of the following apply:
it’s less than 4 months since the tenancy started, or the fixed term has not ended unless there’s a clause in the contract which allows you to do this.
The council has served an improvement notice on the property in the last 6 months.
The council has noticed in the last 6 months that it will do emergency works on the property.
How much does a Section 21 cost?
You can download a free section 21 notice from the British Landlords Association website under the services page. Alternatively, you can use lawyers to do this see the link below.
What is the difference between Section 8 and Section 21?
Section 21 notice merely seeks vacant possession of your property. Section 8 notice puts the tenant on notice of breaches like rent arrears or nuisance. Section 8 notice has other grounds too. Due to the breach under section 8, the landlord can seek vacant possession of the let property. Full grounds under section 8 can be accessed here.
When can I serve, a section 8 notice on my tenant?
Section 8 notice has 17 Grounds, the usual grounds used are grounds 8,10 and 11, which are grounds for rent arrears.
The other Ground commonly used are ground 12. Ground 12 is useful when a tenant has breached the terms of the tenancy.
Ground 14 has no waiting period, you can serve a section 8 notice, under Ground 14, and immediately issue a claim.
However, you should be conscious of the potential pitfalls in using this Ground. Seek legal advice before using this Ground.
Can my tenant claim compensation for not protecting a deposit for each tenancy?
No! Many no win no fee lawyers have sprung out of the woodwork thinking it is an easy money-making opportunity. They all seem to try to claim compensation for each tenancy the landlord has given the tenant.
The deposit legislation clarifies that tenants cannot claim compensation for each tenancy (where there is a breach, and the landlord has renewed the fixed term tenancy).
We have successfully dealt with many cases where a tenant wrongly claims compensation for each tenancy.
Warning to tenants. The deposit legislation was not enacted for tenants to get a windfall in compensation.
Should a tenant claims compensation where the landlord has not complied with the tenant deposit legislation it is not a one-way street. Meaning a landlord can counterclaim for rent arrears, lock change, clean the property, and damage the property.
There cost inclusive of drafting and serving the section 21 notice 6A is £89.
Should you need advice you can contact Landlord Advice UK on 020 3903 2000
The British Landlords Association is a free national landlords association, join us today for Free!
Author: Marc Attwater Date: 8 March 2020