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'Thousands wasted on wrong Section 21 notices" claims lawyer

Agents and landlords are unwittingly issuing incorrect Section 21 notices, resulting in thousands of pounds being wasted on aborted possession claims and extensive delays in recovering property, a solicitor claims.

Danielle Hughes from Kirwans law firm said that the confusion has arisen as a result of legislation changes applying to residential Assured Shorthold Tenancy (AST) agreements which began on, or have been renewed since, October 1 2015.

Hughes says the ‘old’ Section 21 notices, which can still be used in relation to AST agreements made up to September 30 2015, require a minimum standard of proof from agents or landlords that there is a written AST in place, that the deposit is protected and prescribed information relating to the deposit was served on tenants. Licences are also required for HMOs or in Selective Licensing areas.

However, the ‘new’ Section 21 notices - currently intended for AST agreements made from October 1 2015 onwards and not applying to older ASTs until late 2018 - impose several additional obligations on landlords which must be complied with before the eviction notice can be served.

Hughes is concerned that agents and landlords are serving new Section 21 notices on old AST agreements, putting them at greater risk of having their case thrown out of court.

“Section 21 has until recent years been known as the non-fault notice, with the landlord required to provide only basic information for the older form to be valid, while tenants have limited grounds on which to dispute a possession claim.

“However, the new form sets out strict requirements with which the landlord must comply prior to serving the notice, including providing the tenant with an Energy Performance Certificate (EPC), a Gas Safety Certificate, and the government’s ‘How to Rent: The Checklist for Renting in England’ booklet” she says.

In addition the new notice has a shorter validity period compared to the older forms, and can only be relied upon for a limited time after service, meaning that the landlord either has to issue a possession claim within four months or serve a new notice.

“A failure to adhere to any of these requirements renders a notice invalid, which could see the case being struck out of court, a minimum 12-week delay to the landlord, loss of the court fee of £355, and a possible order to pay the tenant’s legal costs” she says.

The new notice also provides tenants with grounds for defending the claim on the basis that the eviction was retaliatory and came about only because they had raised concerns over repairs that needed undertaking on the property.

“If a tenant has reported a repair that needs undertaking to the local authority and an improvement notice has been served, the landlord may be prevented from recovering possession of the property using Section 21 for over six months under the new regulations” according to Hughes.

She says agents and landlords should take advantage of this crossover period to use the old Section 21 notice where circumstances permit before the regulations come into force across the board.

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    New Form 6A does not in itself require you to meet the current standards when served on an 'old' tenancy. As there was no set format for old s.21 notices, the new one is perfectly fine to use. If minimum requirements are requested, you would simply inform the Court that these were not mandatory at the commencement of the agreement.

    Scaremongering is this story.

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    There always seems to be confusion whenever there’s a transition period between old and new legislation. This article highlights some of the potential problems and illustrates that landlords and agents really do need to be up to speed with all the rules and regulations if they are to protect their interests and income.

    This subject appears to be very relevant right now – at LegalforLandlords, we’re getting a lot of calls asking for clarification of the changes. In response, we’ve held a short webinar on the subject and anyone with an interest in the subject can catch up via logging into our resources section on our website.

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    If I were a landlord and my agent made an error in Serving a S.21 Notice then I would be asking serious questions about their knowledge/ability and looking for COM-PEN-SAY-SHUN.

  • Paul  Shamplina

    Having helped landlords successfully serve section 21 notices for almost twenty years I’ve had a lot of experience with the issues mentioned in this article. It can be a common misconception that by issuing their own section 21 notice a Landlord will save money and effort and avoid incurring costs from an Agent or solicitor, however, the introduction of The Deregulation Act has changed the landscape and moved the goal posts to the extent that it is now a lot more onerous for a Landlord to go it alone. Landlords have been required to serve the prescribed tenancy deposit information correctly, conduct inspections and issue EPC certificates and evidence that they have legitimately protected the Tenant’s deposit, and now they must ensure that they are issuing the correct section 21 notice against the correct tenancy agreement. The solicitors at Landlord Action have seen many landlords turn to experienced professionals after attempting to serve notice themselves only to have the notice thrown out at court and declared invalid.

    The above highlights the importance of getting the notice right first time around to avoid unnecessary delays and more importantly to avoid increased costs on the part of the Landlord. There are a number of fixed fee eviction services operating these days which offer a great, cost-effective way for landlords to make sure they get it right first time and do everything they can to protect their interests.

    Paul Shamplina, Founder of Landlord Action

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