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Landlords - is the notice you have served on your tenant valid?
Landlords, are your Section 21 Notices Valid? The Effect of the Housing (Wales) Act 2014
Every Landlord will at one stage find them self in a situation where they require possession of their property back from a Tenant.
One option is to follow the procedure set out in Section 21 of the Housing Act 1988. This procedure is known as the ‘accelerated procedure’ as it is normally quicker than having to prove one the grounds set out in Schedule 2 of the Act. The first step of the procedure is to serve a valid Section 21 Notice.
However, for Landlords with property in Wales, there is now an additional consideration before serving a Section 21 Notice as a result of the Housing (Wales) Act 2014.
What is a Section 21 Notice?
A Section 21 Notice is essentially a Landlord requesting the Tenant to vacate the property. The Landlord does not need to provide a reason for wanting to repossess their property and the Tenant does not need to have breached their tenancy agreement for the Notice to be served.
Most Tenants will vacate the property following receipt of the Notice. However, if a Tenant is reluctant to move, the next step of the procedure is to apply to the Court for a Possession Order when the Notice has expired.
A Court can refuse a Possession Order if the Section 21 Notice served was not in the correct form or if it is invalid in some other way.
What are the Formalities for a Section 21 Notice?
There are a number of requirements for a valid Section 21 Notice. A few of which are explained below*:
Assured Shorthold Tenancies only:
The Section 21 procedure only applies to Assured Shorthold Tenancies. This is the most common form of tenancy as most automatically become this type. However, there are some exceptions and it is always worth checking. If you are unsure of the type of tenancy you have, speak to a member of our Landlord Services Department.
Two months’ notice in writing.
The Notice must be in writing and it must give the Tenant at least a full two months to leave the property.
When the Notice can be served:
The Notice can only be served when the tenancy is no longer within its fixed term. This will either be if the fixed term has expired and the tenancy has become a ‘periodic tenancy’ (a tenancy with no end date which usually runs month to month) or if the tenancy has always been a periodic tenancy.
If you wish to evict a Tenant during their fixed term, you will need grounds to do so. This is a separate procedure set out in Section 8 of the Housing Act 1988 and a Section 8 Notice is used instead. Our Landlord Services Department also provide advice on Section 8 Matters. Please give us a call for an informal chat to see if we can help you.
Correct Expiry Date:
If the fixed term has expired the notice must end on the last day of the rental period.
If the tenancy started after April 2007, you will have needed to put the Tenant’s deposit in a deposit protection scheme. You must also give the Tenant certain information on how the deposit is protected.
Any application to the Court will need to be accompanied with proof that the Notice was given to the Tenant.
Effect of the Housing (Wales) Act 2014
The Housing (Wales) Act 2014 came into force on the 23rd of November 2015. The Act requires all Landlords with rental properties in Wales rented on assured, assured short hold or regulated tenancies to register with Rent Smart Wales.
In addition, if the Landlord is involved in letting and management tasks, they will also need to apply for a licence. If a Landlord is not involved in managing the property, they must still use a licenced agent and declare their agent on registration**.
Does this Affect your Section 21 Notice?
Section 21 Notices served before the 23rd of November 2016 are not affected by the new Act.
However, if a Section 21 Notice is served after this date and a Landlord is not registered/licenced and has not submitted an application to become so at the time the Notice is served, the Notice is invalid.
A Landlord in this situation would need to comply with the requirements of the Act. However, the old notice would still remain invalid and a new notice would need to be served following compliance.
How can Devonalds Help?
Whilst a Landlord can always draft and serve their own Section 21 Notice, doing so can be difficult.
If the expiry date is calculated incorrectly or if there are any other errors, a new Section 21 Notice will often need to be served before a Possession Order can be obtained. This will inevitably cause delay and you may need to reapply for a Possession Order. This will result in further Court fees.
Devonalds’ Landlord Services Department are experienced in drafting notices of this nature and can also assist in your application to the Court for a Possession Order.
We are often able to undertake the work on a fixed fee basis. Call us today on 01443 404700 for a free chat with a member of our team!
* Please note there are additional/different requirements for properties let in England.
**For more information on your obligations as a Landlord with Rent Smart Wales and on sanctions for non-compliance, please visit the Rent Smart Wales Website.