Assured Shorthold Tenancies: A guide to the Section 21 Procedure
If you are a Landlord and you are renting out a house or flat on an assured shorthold tenancy (AST) and wish to recover possession of your property there are two main routes that you can take.
If you are a Landlord and you are renting out a house or flat on an assured shorthold tenancy (AST) and wish to recover possession of your property there are two main routes that you can take. The process is governed by statute, namely the Housing Act 1988, Sections 8 and 21. If you proceed to evict your tenant who is in occupation under an AST without obtaining a court order then this will be an illegal eviction.
What is the Section 21 procedure?
The most commonly used procedure is the one outlined in Section 21 of the Housing Act. This is a much more straightforward process. Moreover, unless the tenant provides a valid Defence as to why they should not be evicted then the Courts will usually make an order for possession without having a hearing on the matter.
What is a Section 21 Notice?
The Section 21 Notice starts the process. It will set out to a tenant that vacate the property 2 months following the service of the notice. The Section 21 notice should be served 2 months prior to the end of the fixed term or at any time following the end of the AST term set out in the agreement.
Requirements for the Section 21 procedure
There are various pre-conditions to serving a section 21 notice. These conditions are:
- Where a deposit has been taken from a tenant this must be held in an authorised deposit protection scheme. If it is not then you will not be able to use the Section 21 procedure. Moreover, there is certain prescribed information that must be given to tenants within 30 days of receipt of the deposit.
- If the property is a house of multiple occupation (HMO) or where the local authority has adopted a selective licensing scheme then it will not be possible to use the Section 21 procedure if you do not have the appropriate license for your tenancy.
- It is a legal requirement for landlords to have an up-to-date Gas Safety Certificates and Energy performance Certificate. These must be kept up to date and provided to the Tenant at the start of the tenancy and following their renewal. Failure to do so will mean that you cannot use the Section 21 procedure.
- If the tenancy has been granted on or after 1st October 2015 then a Landlord must provide their tenant with the government ‘How to Rent’ information at the start of the tenancy. The Landlord should provide the most up to date copy of this information at the start of the tenancy and the tenancy is renewed and a more recent copy has been published then you will need to provide the most recent copy.
If your tenant stays past the end of the notice then you will need to apply to court in order to get them to leave. A claim form setting out that all the requirements for the Section 21 procedure have been met along with any supporting documentation must be filed with the Court. If the Court is satisfied with the claim form and the documentation then they will issue the claim and serve this on the Tenant. The Tenant will then have 14 days to file a Defence setting out that either the claim form has not been correctly served or that the landlord is entitled to possession under the section 21 procedure.
If no Defence is filed within the 14 days then the landlord is entitled to request an order for possession be made.
Holly Minney, Head of the Dispute Resolution department, said
“The process of evicting a tenant can be a stressful process and there are various requirements that must be met in order to be successful. As the Section 21 process is usually the preferable option as it is speedier, more cost effective and the court is obliged to make a possession order without the landlord needing to establish grounds it is important to utilize this process where possible.”