Here is a question to the blog clinic from Maurice who is a landlord.
I wish to move back to a tenanted property, and issued an eviction notice, Section 21b in September 2020, but didn’t pursue it due to Covid circumstances. Can I now pursue eviction proceedings on the basis of that notice?
Answer
I suspect that many landlords may be in your position.
The answer is that it depends on whether the property is in England or Wales!
If the property is in England
In short, no, you cannot pursue eviction proceedings using a section 21 notice which was served in September 2020.
Section 36 of The Deregulation Act 2015 set a ‘use it or lose it’ period of six months from the date the notice was served on the tenant. So if your notice was served a year ago then that period has now expired and you will need to serve a new notice.
The good news is that notice periods for section 21 notices have now reverted to pre-pandemic levels so you will need to give not less than two months notice.
Be aware that there are a number of pre-conditions for serving a section 21 notice – for example:
- If a deposit was paid this must have been protected within 30 days of receipt of the money and must have been for the correct amount
- If your property is an HMO you must have obtained a license
- You must have served a gas safety certificate on your tenants at the time that they moved in
- and so on.
So you need to check that you are compliant before serving your new notice.
If the property is in Wales
The changes to section 21 brought in under the Deregulation Act (in particular the ‘use it or lose it’ rule) do not apply in Wales. Instead, note that all landlords must be licensed with Rent Smart Wales as a condition of being able to serve an eviction notice.
However, provided you are properly licensed, your notice is correctly drafted and you have complied with the various pre-conditions, you should be able to use your notice to base a claim for possession.
And generally
I assume that you have not given your tenants a new tenancy agreement in the interim as if so, that will invalidate any previously served section 21 notice.
It is really important that you check that all the pre-conditions for serving a section 21 notice have been complied with.
Judges tend to be very strict about this and any claim where, for example, they learn that you have failed to protect the tenancy deposit or have failed to serve the proper paperwork on your tenants, will be struck out and you will have to start again (and could be ordered to pay your tenants legal costs).
We have a number of resources to help landlords get things right on my Landlord Law site. We have a free ‘Which Possession Proceedings Guide‘ and also a Section 21 Guide (although that is a members-only service.
*And so on?
And how do you invalidate a notice by issuing a new contract when it’s invalid anyway due to 13 months having passed since it was issued?
We were thinking of Wales in that context.
Could a section 8, ground 1 notice be used if the relevant notice was served before the tenancy started. I have found this notice is included in most standard tenancy agreements. I think this will remove the need for GSC, deposit etc to be done correctly?
Assuming that the landlord has either lived in the property in the past or is evicting the tenant so they can live in the property themselves in the future.
We recommend adding a ground 1 notice to all tenancy agreements where this is likely to apply and our Landlord Law document generator form for our tenancy agreements provides for this.