This is the second blog in the series relating to the completion of notices and gaining possession on the expiry of them. The first post was on completing a section 8 notice. This post will look at completing the new form 6A Section 21 notice introduced by the Deregulation Act 2015.
The notice can be served by landlords who seek possession of a property let under an assured shorthold tenancy pursuant to section 21(1)(b) or (4)(a) of the Housing Act 1988. So, despite it being a new form the notice is still served pursuant to sections 21(1)(b) and (4)(a) that most of our readers are familiar with.
As the law currently stands, a s21 form 6A “must be used for all ASTs created on or after 1 October 2015 except for periodic tenancies which have come into being after 1 October 2015 and which were fixed term ASTs created before 1 October 2015. This form may nevertheless be used for all ASTs.”
This post focuses on the use of form 6A for tenancies that started or were renewed for a new fixed term on or after 1 October 2015. Form 6A may be used for tenancies that commenced prior to 1 October 2015 but we will not discuss that in detail here. A separate blog post will be written on this topic.
Prior to serving the new notice there are a few issues that should be considered. These are:
- A s21 notice served in the first four months of the tenancy is invalid. If the tenancy is a replacement tenancy, then the four months is calculated from the original term and not the replacement term;
- Landlords are now prevented from retaliatory or revenge evictions. This means that s21 notices will be invalidated where the tenant has complained about the condition of the property and that complaint has been upheld by the local authority by the service of an enforcement notice;
- A s21 notice will be deemed invalid if landlords have failed to provide the tenant with an EPC, Gas Safety Certificate or How to Rent Guide;
- A s21 notice will also be deemed invalid if the landlord has failed to obtain a House in Multiple Occupation licence for a property that should have one; and
- Finally, a s21 notice will be deemed invalid if the landlord has failed to register a tenant’s deposit and provide the prescribed information to the tenant within 30 days of the commencement of the tenancy.
Assuming the notice is not invalid for one of the reasons above you can serve a section 21 notice on the new form 6A either during the fixed term tenancy where there is a break clause or during the periodic period. Of course, notices served during the fixed term that expire during the periodic term are also permissible.
The form 6A notice is a prescribed form notice and that means landlords or their agents should simply complete the relevant sections without adding any further narrative. The notice must clearly state the name and address of the tenant along with the date that you want possession. This date should allow time for posting, usually 2-3 working days (remember a working day excludes a Saturday, Sunday and Bank Holiday) and then expire 2 months thereafter. So, for example, if you post the notice by first class post on 1st March it is deemed served on 3rd March if the days in between are working days; therefore the earliest date you should write on the notice is 3rd May. We do recommend that when completing this expiry date the landlord or agent should be prudent and allow an extra couple of days so that any judge is in no doubt the tenant received the full two months’ notice, that is 5th May.
The notice should also state the name, telephone number and address of the person completing and signing the notice, this could be the landlord or their agent. Where a notice is completed by the agent the address is the company that they work for and not their personal address. Then finally, the notice must be dated.
The new s21 form 6A only applies in England. In Wales form 6A should not be used and landlords or their agents should continue to use the old Section 21 (1) (b) or (4) (a) that they are familiar with.
As with the Section 8 notice, once the s21 notice has expired if the tenant is still in occupation landlords will be required to obtain a possession order from the court before they can take back the property. This is because the expiry of the notice does not mean the end of the tenancy. Therefore, all the landlord’s obligations, including those relating to repairs, continue. Where the tenant does leave, landlords are of course free to take back possession and re-let.
The new regime is far more complex. At Painsmith we serve these notices on a case by case basis so it is important to take advice at an early stage if there is any doubt about the validity of a notice.