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What are the common pitfalls that landlords face when serving a Section 21 notice?

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When a landlord wants to evict a tenant by serving a Section 21 notice, there are certain obligations that they must follow to ensure that their notice is valid. Following the correct rules and procedures will prevent unwanted delays in issuing court proceedings, which will hopefully lead to a landlord gaining possession of their property as quickly as possible.

To prevent an invalid Section 21 notice being served, the first thing that is important for a landlord to take into consideration is the notice itself.

A Section 21 notice must include the name of the landlord, the landlord’s address for service, the tenant(s) name, and the property address that the landlord is seeking possession of. A landlord must also state an expiry date on the notice, giving at least 2 months for a tenant to vacate the property. Failing to do this risks the notice being deemed to be invalid.

In normal circumstances, these details tend to marry up with those stated in the tenancy agreement. Therefore, the question may be raised as to what happens if these details change. Under Section 48 of the Landlord and Tenant Act 1987, a landlord must notify their tenant(s) of their current address for service. If the landlord’s address for service changes during the term of the tenancy, the updated address for service must be provided prior to serving a Section 21 notice. Landlords can do this by serving a Section 48 Notice.

Prior to the commencement of a tenancy, a landlord can also take a deposit from a tenant. A landlord must protect this deposit within a tenancy deposit scheme within 30 days of receipt of payment. To comply with the tenancy deposit rules, a landlord must also provide a tenant with a copy of the deposit prescribed information within this same time frame. However, it is important to bear in mind that a landlord must not exceed the maximum deposit threshold. This must be no more than 5 weeks’ rent.

For a Section 21 notice to be valid, other prescribed documents must be provided to a tenant, usually at the start of the tenancy, but crucially, must be served prior to the service of any notice. A copy of the most recent How to Rent guide, gas safety certificate (if the property is serviced by gas) and an energy performance certificate must be served to the tenant. The Section 21 process has yet to be updated to include the electrical installation condition report however, from 1 June 2020, landlords are required to have a valid electrical installation condition report.

Subsequent versions of these documents must be served on the tenant as and when they are released (if during the tenancy term), or when updated inspections are carried out at the property. A gas safety certificate should be being given to a tenant annually as landlords are required to carry out annual gas safety checks.

Not only is it important that a landlord serves this documentation, but that they serve it correctly. If a landlord has no express authority from the tenant to serve this documentation via email, then they must serve these documents in hard copy, otherwise they will be deemed as not served. We suggest that hard copies are sent via hand delivery or first-class post.  

A landlord must check that they have met all of these requirements prior to serving a Section 21 notice. If they have not done so, it is likely that their notice will be considered invalid. Serving an invalid Section 21 Notice will delay a landlord in gaining vacant possession of a property.

If you are a landlord and need advice on your obligations or if you need assistance with drafting and serving a notice, our specialist team can assist, call us on 0161 696 6170 or complete our online enquiry form and we will contact you directly.

By Emma Wilkinson, commercial & dispute resolution team

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