How do I Ensure Notice Dates are Correct?
Landlords and letting agents, at various times during a tenancy, may need to serve legal notices on their tenants.
It is vital that not only do you complete and serve the notice in such as way that it is valid, but that you can prove you served it. If a tenant challenges a notice in her defence, or claims not to have received it, any claim for possession could be thrown out of court.
It is also vital that the notice dates are correct; otherwise your notice will be thrown out. According to official statistics, a high proportion of tenancy possession claims are thrown out of court due to errors in the notices served on tenants.
There are two occasions when landlords or their agents may need to service notices on tenants:
- When they have taken a deposit and to comply with the Tenancy Deposit Scheme rules (Housing Act 2004) you need to serve the deposit notice (section 213 Noitce)
- When seeking possession of the property, either at the end of the tenancy term using a section 21 notice, or during the tenancy term if the tenant is in breach of contract (Housing Act 1988 and 1996) you serve a Notice Seeking Possession (Not a notice to quit, which applies to common law tenancies)
Getting the Dates Right
You have strictly 30 days from taking a deposit to serve the Tenancy Deposit Notice on your tenant/s. Make sure the date bon the notices and your proof of service is within the 30 days. If you fall foul of this requirement you could find yourself unable to evict and with a fine as well.
When seeking a possession order there are three options:
- Serving a Fixed Term Section 21 Notice – s21(1)(b) – this notice must be served within the fixed term up to and including the last day of the term, and acted upon immediately afterwards.
- Serving a Periodic Notice – s21 (4) (a) – once the fixed term has ended, when the tenancy has not been renewed and any notice served during the fixed term is not acted upon, (by applying to court for a possession order) then a periodic tenancy will automatically come into existence. This will usually be a monthly periodic tenancy (when rent is paid monthly) and requires a Periodic s21 Notice to bring it to an end.
- Serving a Section 8 Notice – this is usually a 14 day notice citing one or more of 17 grounds for possession listed in the Housing Act 1988 and 1996 when the tenant is in breach of contract. Unlike the s 21 notices, the s8 notice can be served and acted upon within the fixed term.
How Do I get those Dates Right?
You need to do your homework before handling the serving of notices and applying for a passion order yourself. If you are not prepared to do some careful reading, or you don’t feel confident in doing this, you should consider using the services of a professional – an eviction specialist or a solicitor.
Bear in mind though, you are unlikely to have any change out of £1000 for the average eviction, and that’s not counting loss of rental income and any damage the tenant may have done to your property.
When serving a Section 8 notice, the notice is usually 14 days. Always allow slightly longer than the specified notice period before applying to court, especially if the notice is posted, just to be on the safe side. Judges stick exactly to the letter of the law, so if it says 14 days and your notice period is 13 and one half days, then your case will be thrown out.
When you serve a section 21 notice you need to be very careful with the notice dates.
1 – The main points when serving s fixed term s21 notice:
- The notice can be served at any time during the tenancy term, from immediately after the agreement is signed, to and including the last day of the term. Make sure you can prove it was served AFTER the agreement was signed
- The notice will be invalid if it is served BEFORE you protect the deposit and serve the deposit notice (s213 notice)
- When the notice expires inside the fixed term dates the notice date will be the last day of the tenancy term, AFTER which you seek possession
- When the notice expires outside the tenancy term the notice date is a minimum of 2 months after the date of service – always allow a few extra days to be safe.
- Legal agreements such as tenancies always work on calendar months. A six month AST, for example, will run from the 6th of June (the date the agreement is signed) to the 5th of December, AFTER which you seek possession
- The rent day or the day the rent is paid is not material to the tenancy dates – it’s the day the agreement is signed, or if not the same, a date specified in the agreement which determines when the tenancy starts and ends.
2 – The main points when serving a periodic s21 notice:
- A periodic tenancy is based on the rent payment periods. Most ASTs are based on monthly rent periods, so when the tenancy becomes periodic (this is automatic once the fixed term ends) the tenancy terms run month to month
- In the example given above, the periodic tenancy will commence on the 6th of December and the first term will end on the 5th of January, that’s providing the fixed term is not renewed. The periodic terms can continue on indefinitely until brought to an end by one or other of the parties
- The notice period for a periodic AST under the Housing Act 1988 & 1996 is two clear tenancy periods’ notice
- To serve a valid notice using the example above, let’s say today’s date is the 15th of the month of February. To include two CLEAR tenancy periods you go to the end of the period (5th March) and add 2 months, which brings you to the 5th of May – that’s your notice date, AFTER which you seek possession
- It does not matter if you give more than two months’ notice, in fact it’s better to have a safety net period, and the date you serve it (today) is not material; all that matters is that you get the notice end date right.
When the Rent is Paid Weekly
When the rent is paid weekly, calculating the notice date is more complicated.
When rent is paid weekly, a weekly rent book is legally required.
The rules say the notice for a periodic tenancy must end on the last day of a tenancy period. With weekly tenancy periods, serving a 2-month notice ending on the last day of a period can be confusing.
This is best explained by example: A 12 month fixed-term AST with rent paid weekly ends on 20th April 2010 – therefore the fixed term ran 21st April 2009 to 20th April 2010.
Serving the s21 notice after 20th April 2010 would be a periodic notice s21 (4) (a) but what is the notice end date?
The tenancy ends on the 20th April so the next tenancy period runs Wednesday 21st April 2010 to Tuesday 27th April 2010. The weekly tenancy terms therefore run Wednesdays to Tuesdays.
Two months from the 27th of April will be 27th of June, which is a Sunday.
Taking this to the end of that tenancy period will be Tuesday the 29th of June – that is the date you should use as the notice ending date.
Note, 2 clear months’ notice is the minimum period required – there’s nothing to stop you giving more than this by way of a safety margin.
Grounds for Possession and Notices – More Articles and links for this Section:
- Section 21 Notice
- Section 8 Notice
- Housing Act 1988 – http://www.legislation.gov.uk/ukpga/1988/50/contents
- Housing Act 1996 – http://www.legislation.gov.uk/ukpga/1996/52/contents
- Schedule 2 – 1988 Act – http://www.legislation.gov.uk/ukpga/1988/50/schedule/2
- Forms – http://www.justice.gov.uk/courts/procedure-rules/civil/forms
- LandlordZONE FREE Document Downloads – http://www.landlordzone.co.uk/agreements.htm
By Tom Entwistle
©LandlordZONE All Rights Reserved – never rely totally on these general guidelines which apply primarily to England and Wales. They are not definitive statements of the law. Before taking action or not, always do your own research and/or seek professional advice with the full facts of your case and all documents to hand.©LandlordZONE® – legal content applies primarily to England and is not a definitive statement of the law; always seek professional advice. Legislation changes, so check dates on these articles. If you have questions go to the LandlordZONE® Forums