Kiteleys Solicitors

Kiteleys Solicitors. 7 St. Stephen's Court, 15-17 St. Stephen's Road, Bournemouth, Dorset. BH2 6LA. Telephone 01425 278866.
Kiteleys Solicitors is the trading style of Kiteleys Solicitors Limited registered in England and Wales, registered number 03113721. VAT Registration No: 658 8813 79.
This firm is authorised and regulated by the Solicitors Regulation Authority. A list of directors is available for inspection at our registered office.

Section 21 Possession Claims – Getting your property back at the end of a tenancy

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Almost every tenant rents under an assured shorthold tenancy. This is the default legal category of residential tenancy in England and Wales. As such, almost every tenant has a degree of security of tenure. This means that the tenant has an automatic right to occupy the property after the lease expires.

 

The counter balance is that there is a ‘no fault’ possession procedure available to landlords. A landlord does not need to show that the tenant is in breach of the tenancy to regain possession. So long as the correct notice is served, the correct notice period given and correct procedure followed; the landlord should get possession of the property back. This is most commonly known as the S21 procedure.

 

The Notice

 

It is fundamental to get the notice right. Even a small error results in failed possession proceedings meaning that you need to start all over again. One extreme example is referring to the wrong subsection of S21, if you refer to S21 (1) (b) when you ought to be referring to S21 (4) (a), your proceedings will fail.

 

Remember also that, due to the changes made by the Dereguation Act 2015, there is now a prescribed form for the S 21 notice. The new provisions will apply to all new tenancies starting on or after 1st October 2015. As of 1st October 2018 the provisions will apply to all ASTs in existence at that time.

 

Many landlords choose to run the risk of drafting their own notices to save costs and only instruct solicitors if the tenant does not leave at the end of the notice period. Unless you are very experienced with these matters, this can be a false economy. Consider what may happen if the instructed solicitor finds an error with your S21. You may have to wait out another notice period and if the tenant is not paying rent, this could be crippling.

 

The Notice Period

 

The notice period must be at least two months long and expire on the last day of a period of the tenancy. If the notice is too short, or expires on the wrong date, it is invalid.

 

Note that this requirement is being changed by the Degregulation Act 2015. Never the less, if the tenancy began prior to 1st October 2015, this requirements still applies.

 

Serving the Notice

 

There are many ways to serve a notice: in person, at the property, by post, email or fax or even via an agent. The best method will always depend upon the tenancy agreement and the facts of your case. Regardless of which method is used, being able to prove that the notice was sent and received is crucial.

 

Possession Proceedings

 

If the tenant does not leave upon the expiry of the notice, you can apply to the court for a possession order.

 

Once you have a possession order, the tenant should leave. Failing this, you can apply again to have the court bailiffs evict your tenant.

 

You should never try to force your tenant out yourself, even after being granted possession by the court.

 

Pitfalls

 

According to the Chairman of the London Association of District Judges, 7 out of 10 of S21 notices are thrown out of court because they are wrong. If you are ever in doubt, seek advice.

 

The term “expire on the last day of a period of the tenancy” has caused much confusion. Although this is being phased out by the Deregulation Act, this requirement still applies to tenancies granted prior to 1st October 2015.

 

Proof of service. Some landlords believe it’s enough to simply hand the tenant the notice (or leave it at the property). This is almost never good enough as you simply cannot prove you served the notice. Delivering with a witness present could work, but not if they are a family member (or unwilling to attend court). Remember, if the tenancy agreement provides for a method of service, you must use that method.

 

Deposits. A section 21 notice is not valid if you have not protected the deposit. If you have not protected the deposit, you will need to seek specialist advice on how to proceed.

  • George Crofts

    George Crofts
    Solicitor

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Talk to one of our solicitors

At Kiteleys we are always happy to help. We believe that the law should be easily accessible, so if you have any questions for our landlord and tenant solicitors please don’t hesitate to get in touch.
Call us on 01425 278866 or enquire online.

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Kiteleys Solicitors. 40 Haven Road, Canford Cliffs, Poole, Dorset. BH13 7LP. Telephone 01425 278866.
Kiteleys Solicitors is the trading style of Kiteleys Solicitors Limited registered in England and Wales, registered number 03113721. VAT Registration No: 658 8813 79.
This firm is authorised and regulated by the Solicitors Regulation Authority. A list of directors is available for inspection at our registered office.