View Full Version : Is court action our only recourse?
Hi. Our tenants have been given the S21 notice to quit as they are now 4 months behind in their rent payments and don't appear to be taking seriously their obligation to address this matter (trying to go 'self employed' & won't get housing benefit they say). Our patience is finally running out so, when the 2 months notice on the S21 runs out, will we need to get a court order to evict them if they won't go after that? How would we go about this please? SFM.
24-01-2011, 16:29 PM
Presuming they don't go, you will need a court order. However, a section 8 notice (as opposed to a s21) will have a shorter notice period, will cost slightly less and you can ask for a court order for the missing rent. Details of s8 proceedure here: http://tenancyanswers.ucoz.com/index/ast_tenants_in_breach_of_contract/0-36
However, your question relates to s21, so....
Section 21 is used to seek possession when a tenancy is no longer within it's 'fixed term' - either at the end of an AST or during a Statutory Periodic Tenancy.
There are 2 types of Section 21 notice, and it is critical that you use the correct one.
If your tenant is within the fixed term of their tenancy at the time of service, then you need to serve a section 21(1)(b) notice, giving a minimum of 2 months notice.
If your tenants fixed term is over at the time of service, you need to serve a section 21(4)(a) notice giving a minimum of 2 months notice and expiring after the final day of a tenancy period.
If rent is due monthly, the last day of a tenancy period will always be the same day of the month as the last day of the fixed term.
There is no specific format for a section 21 notice, however there are a number of templates available on the internet.
A section 21 notice will not be valid if:
At the time of service, any protectable deposit was not protected as required by the 2004 Housing Act
At the time of service, the rental property was a licensable HMO and there was no license applied for or obtained.
There is less than 2 months notice from service date to expiry date of an s21(4)(a) [or s21(1)(b) if mentioned.*]
The expiry date of a s21(1)(b) - if mentioned - is before the end of the tenancy*
* Common practice is for there to be an expiry date on a s21(1)(b) and it is expected by many district judges. However there is no requirement in the legislation for an expiry date - unlike s21(4)(a)
You can not seek possession under this section if the tenancy (not tenancy agreement) is less than 6 months - even if the agreement is for a shorter time.
You can not seek possession under this section during the fixed term of a tenancy agreement unless you have activated a break-clause.
You will need to obtain proof of service of your section 21 notice. You can take a witness and obtain a statement from them, but the most straightforward way is to send 2 copies by first class post from different post offices - obtaining a free certificate of posting. The courts will accept this as proof of service 2 working days later. Do not use 'Special Delivery' or 'Recorded Delivery' as the tenant can refuse to accept these.
Whichever is later between 2 months after service (if no expiry date is shown - see * above), or after the notice period expires you can apply to the court for a possession order.
If you have a written tenancy agreement then you can use the accelerated proceedure by completing form N5b (http://www.hmcourts-service.gov.uk/courtfinder/forms/n5b_web_0410.pdf) and submitting it to the court with your fee and the various paperwork the form asks for. If the possession is not defended, there will be no hearing and a judge will make a decision in 14-28 days. If the possession is defended, a hearing will be required and this will delay the decision by 2-4 weeks or more.
If you have only an oral tenancy agreement, you can not use the accelerated proceedure. Complete form N5 (http://www.hmcourts-service.gov.uk/courtfinder/forms/n5_0805.pdf) and submit it to the court with your fee. A hearing will be required, which will usually take 4-6 weeks.
In both cases, the tenant will be given at least 14 days to go and, in the case of an s21(1)(b) will be given at least until the end of the fixed term. If the tenant still refuses to go, you will have to employ court bailiffs, which is more expense and time.
DO NOT be tempted to use any process other than shown above. To do so will almost certainly be illegal eviction, which is a criminal offence and carries potentially heavy penalties.
24-01-2011, 22:03 PM
Hi. Our tenants have been given the S21 notice to quit
Snorkerz has already given you all the practical advice you need, but just to point out, a s.21 notice is NOT a notice to quit. It does not end the tenancy nor oblige the T to vacate. It merely entitles the LL to apply to the court for possession after the notice expires.
as they are now 4 months behind in their rent payments and don't appear to be taking seriously their obligation to address this matter
And if it isn't already obvious, you should serve a s.8 notice as soon as there is two months rent owing and unpaid. Note, this isn't the same as being in arrears if the rent is due, under the contract, in advance. Therefore, the day after the second months' rent is owing and unpaid, you have grounds to serve a s.8 notice using ground 8, one of the mandatory grounds for possession.
Many thanks for your help guys. As you can tell, we've not had to go down this route before so want to make sure it is correct. Sounds like the fact that 4 months rent is now due qualifies for the S8 route, plus a possible court order. We had hoped it wouldnt come to this - Hey ho! SFM
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