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Notices Seeking Possession – Common Misconceptions

We frequently see landlords and agents falling foul of some common misconceptions when it comes to serving notices seeking possession upon their tenants. This blog aims to address these issues.

What is a Notice Seeking Possession?

Both Section 8 and Section 21 Notices are Notices Seeking Possession. Simply put, they notify the tenant that their landlord will require possession of the property but it is up to the Court to decide and grant possession.

Section 8 Notice

The Section 8 Notice typically cites a specific fault (usually rent arrears but other Grounds can be used) of the tenant and requires the fault to be remedied by the date set out in the Notice. The section 8 Notice does not require the tenant to vacate the property. The tenant needs only to remedy the fault cited in the Notice or proceedings can be issued against them seeking possession.

If the landlord makes a possession claim where the tenant has addressed the issues citied in the Notice their landlord cannot reasonably expect that a court will award possession of the property. Where the landlord is reliant on discretionary grounds of possession it is vitally important that evidence is retained of ongoing breaches of the tenancy agreement from when the Notice is served at the possession hearing in order to satisfy the Judge that granting a possession order is appropriate in the circumstances.

Section 21 Notice

The Section 21 (Form 6A) is a no-fault Notice. This Notice informs the tenant the date by which they must vacate the property or the landlord may then issue possession proceedings against them. The Notice seeks repossession but only when the matter reaches Court can the Judge exert his authority to grant possession provided circumstances and the correct documents comply.

The Section 21 notice requires that the tenant is given a minimum of 2 months’ notice to vacate the property. This is 2 clear months (i.e. 1st January to 1st March), not 2 months less one day. The 2 months’ notice starts from the date that the notice is deemed to have been served upon the tenant, this is not necessarily the day they receive it. Therefore if the notice is being posted you must account for time before the notice will be deemed served upon the tenant. We recommend that you check the notice clause in your tenancy agreement prior to service of the notice to ascertain how the notice can be correctly served. In practice this means if the Landlord wants the Tenant to vacate the property on February 28th in the example above the Notice should be served and dated approximately five days before January 1st depending on Saturdays, Sundays and Bank Holidays. The year 2022 is a good example. If the Notice was served on December 28th 2022 and sent out by first class post it would be deemed served two working days later being December 30th. The date of the Notice will be December 28th and that date must be shown on the Form 6A. It will be deemed served on December 30th and has been served in good time.

Alternatively, if the Notice is sent out on December 30th 2022 which is a Friday then we have to account for Saturday, Sunday and the Bank Holiday on Monday January 1st 2023 so we then need two working days being the 3rd and the 4th of January so the Notice is not deemed served until January 5th 2023. We still date the Notice on December 30th 2022 but it cannot expire until March 5th 2023 at the earliest although it is prudent to allow another two or three days to demonstrate to a judge the tenant was given ample notice.

The tenant is not required to acknowledge receipt of the notice or agree to vacate in accordance with the date set out. It is the landlord’s first step to regaining possession of the property. Should the tenant fail to vacate the landlord can then issue a possession claim against them.

Common queries:

The fixed term is ending do my tenants have to leave?

No, when the fixed term ends the tenancy will automatically become a periodic tenancy. If the landlord wants possession of the property back they must serve a Notice seeking possession.

Can the tenant leave before the notice expires?

Yes, either by mutual agreement with the landlord, by serving their own notice in accordance with any break clause, or in a periodic tenancy by giving their own notice to end at the end of a period of the Tenancy being the day before rent is due. It may mean that the tenant can leave before expiry of the Section 21 notice.

Do I still charge the tenant rent after my section 21 notice expires?

The tenant is required to pay rent in full on the usual date due as per the tenancy agreement. Rent should not be apportioned in advance of the notice expiring. Once the tenant has vacated in accordance with the Notice, Section 21C Housing Act 1988 requires any overpaid rent to be returned to the tenant, apportioned at a daily rate. If the tenant leaves on an earlier date then the Court of Appeal case of Marks and Spencer plc v BNP Paribas may apply which means if the tenant leaves early they are not entitled to any refund of rent.

Does the notice need to expire at the end of a rent period?

The Deregulation Act 2015 disposed of the requirement for the landlord’s Section 21 notice to expire at the end of a tenancy period. Therefore, unless serving the notice to expire at the end of the fixed term the notice need not expire at the end of a tenancy period. One notable exception could be service of notice to expire in line with a break clause. The agent should carefully check the wording to ensure that the notice does not need to expire on a specified day.

Tenants in a statutory periodic tenancy are required to serve notice in line with tenancy periods unless otherwise agreed or accepted by the landlord.

My tenants didn’t vacate after I served notice are they trespassers?

Tenants that remain in the property after expiry of a notice are not squatters or trespassers, they have entered the property legally and have the right to exclusive and uninterrupted possession until they are evicted by  a court appointed bailiff.

Can I increase the rent whilst my notice expires?

We strongly recommend against this action. To increase the rent can give the impression that an extension of the tenancy has been agreed and give the tenant an opportunity to defend the claim; and can also cause resentment which could entice the tenant defend any proceedings.

Can I withdraw my section 21 notice?

A Section 21 notice cannot technically be withdrawn. That said the landlord does not need to issue a possession claim upon the notice should they not wish to, under the Deregulation Act 2015 the Notice will automatically expire after six months from the date if issue.


Published 12 December 2022

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