One area where Agents and Landlords often trip up in lettings is serving notices on their tenants to get their property back.  Gaining possession of a property can be a long drawn out process at the best of times, but if notice is not served correctly then this can result in it being dismissed by the courts meaning you have to start all over again!

Section 8 and Section 21 notices are the two most common and frequently used notices and can be confusing.

Section 8 (Form 3) Notice seeking possession of a property

These can be used to serve notice on a Tenant for a breach of an Assured Shorthold Tenancy (AST) agreement within the fixed term.  They are most commonly used when there are rent arrears.

If possible serve the Section 8 Notice under grounds 8, 10 and 11 as soon as the tenant defaults on two months* of rent arrears.

  • Ground 8 – at the date of service at least 2 months* rent is unpaid
  • Ground 10 – at the date of service some rent is lawfully due from the tenant
  • Ground 11 – the tenant has persistently delayed paying rent lawfully due

On any of the grounds shown above you are only required to give the Tenant 2 weeks notice from the date of service.  If the Tenant refuses to leave on the date specified in the notice then you can apply to the courts for a ‘possession order’.

Section 21 (Form 6a) Notice seeking possession of a property

A section 21 notice gives a landlord an automatic right of possession without having to give any grounds (reasons).  This notice is used to officially terminate the tenancy at the end of the fixed term or in line with an agreed break clause, or where the tenancy is running on a periodic basis.

You are required to give the Tenant a minimum of 2 months notice

Here’s where the confusion arises:

If the tenancy commenced before 1ST October 2015 and no new fixed term has been entered into (i.e it has not been renewed) after that date, notice can be served at any time, even if the tenancy was renewed just prior to this date.  However the notice cannot expire until the end of the latest fixed term – unless using a break clause.

If the tenancy commenced after 1st October 2015, you are not permitted to serve a Section 21 notice until after the first four months** of the tenancy have lapsed.  This means that you can serve notice on day 1 of the 5th month or any day thereafter, but it still cannot expire until the end of the fixed term – unless using a break clause.

A new government Form 6A must be used for all tenancies commencing after 1ST October 2015 including any renewals.  The notice is only valid for six months from the date of issue.

If a tenancy began before October 2015 but a renewal has been granted after that date then you would still use Form 6A.

Even if a tenant tells you that they will be leaving at the end of the fixed term it would be good practice to serve the Section 21 anyway to ensure that the notice is in place should the tenant fail to vacate and possession proceedings become necessary.

If you are not sure on what form to use or how to complete it seek help from a solicitor.

 

where rent is not paid monthly the amount of rent arrears differs.  i.e weekly/fortnightly: 8 weeks’ rent must be due, quarterly: at least 1 quarter’s rent is more than 3 months in arrears, annually: at least 3 months’ rent is more than 3 months in arrears)

** The rule regarding the first four months of the tenancy only applies from the date of the first agreement.

 

(Gov.uk templates: Section 21 (Form 6a)  Section 8 (Form 3) )