Least Risk? S21 or S8

by Readers Question

15:49 PM, 27th September 2017
About A year ago

Least Risk? S21 or S8

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Least Risk? S21 or S8

We have a tenant finding it hard to find a property to move to. A developer let them move into a new house which is now for sold STC but the wave of Landlords selling is tightening supply so they can’t find anywhere.

They have an expired S21, but now owe three months rent too. The S21 may fail due to proof of service of the ‘How to rent’ booklet and EPC or the reliance of a Completion Certificate for the new Gas Boiler & Hob rather than a Gas Safety Cert at the outset.

Deposit is all protected etc. but I am now thinking of withdrawing the S21 and issuing Section 8.

Payments were erratic for a while during the tenancy, but since the S21 was served they ‘saved up’ for a new deposit and rent in advance using the developers’ rent.

Suggestions?

Jon



Comments

Neil Patterson

15:53 PM, 27th September 2017
About A year ago

Hi Jon

Please also see Paul Shamplina's article on the Deregulation Act >> https://www.property118.com/what-does-the-deregulation-act-2015-mean-for-landlords/

The legislation also requires landlords to provide all new tenants with information about their rights and responsibilities as tenants. This information includes such detail that a landlord cannot serve a Section 21 notice unless they have complied with certain legal responsibilities.

The government also introduced a new standard form that landlords must use when evicting a tenant under the ‘no fault’ (section 21) procedure. This makes it more straightforward for landlords to evict a tenant where it is legitimate to do so.

These provisions apply to all new assured shorthold tenancies that start on or after 1 October 2015. However, as of 1 October 2018 the provisions will apply to all ASTs in existence at that time.

1. Compliance with prescribed legal requirements

A Section 21 notice may not be given if the landlord is in breach of any legislation which relates to any of the below.

The condition of dwelling houses or their common parts
The health and safety of occupiers of dwelling-houses
The energy performance of dwelling-houses.

This means all landlords must provide tenants with an EPC and a Gas Safety Certificate before the tenancy begins. If at a later date the landlord wants to serve a Section 21 notice on a tenant, he will need to prove the tenant has been provided with these two documents. If they don’t do this then the landlord wont be able to use the section 21 notice.

2. Requirement of the landlord to provide Prescribed Information

At the start of each AST, landlords are now required to provide tenants with a copy of the Department for Communities and Local Government’s booklet entitled ‘How to rent: the checklist for renting in England’.

Neil Patterson

15:59 PM, 27th September 2017
About A year ago

Please also see Tessa Shepperson's series starting with "Section 21 – the New Pre-Conditions" >> https://www.property118.com/section-21-new-pre-conditions/

"So, to summarise. To be able to serve a valid section 21 notice:

You MUST have complied with the deposit rules within the time limit or (in most cases) you will need to refund the deposit money before serving your notice
You must also have an HMO license if your property requires one – but can serve your notice if you have applied for one (while your application is being processed) or if you have a TEN
You must have served first the Gas Safety Certificate and a valid EPC (England only) and
You must have served the governments How to Rent Booklet (England only)."

Neil Patterson

16:01 PM, 27th September 2017
About A year ago

How the above affects a section 8 notice I am not an expert on so maybe others can help and it is also worth considering professional advice so please see our tenant eviction page >> https://www.property118.com/evicting-tenants/

Dr Rosalind Beck

9:48 AM, 28th September 2017
About A year ago

Reply to the comment left by Neil Patterson at 27/09/2017 - 16:01
Hi Neil. Is this all just for England?

Mandy Thomson

13:26 PM, 28th September 2017
About A year ago

Hi Jon

If the tenancy is from 1 October 2015 onwards then the Dereg Act applies. However, if you believe the tenants are unlikely to defend the s.21 (usually because they want to prove no fault eviction to get social housing), you may still be ok to go ahead. This is because possession claim form N5b still doesn't ask about this nor does it require attachment of any copies of the new prescribed information. Lack of service of these would therefore only come to light if tenants defended or some discrepancy in the claim led to a hearing being scheduled, which is unlikely.

With section 8, to get an eviction you're relying on ground 8 - at least 2 months rent arrears on date of service and on day of court hearing (which there will always be). Tenants can easily bring the arrears to under 2 months (local authorities and housing charities will often pay it for them if it's a relatively small amount), meaning you're only likely to a suspended possession order at best.

I'm afraid it's your judgment call, based on what you believe the tenants want and possibly the waiting times for hearings at the court.

Gary Dully

3:37 AM, 29th September 2017
About A year ago

Reply to the comment left by Mandy Thomson at 28/09/2017 - 13:26
Even if you meet ground 8, the judgements are having the ground marked as 'Discretionary' on the n26 repossession orders.

This is my 3rd set of eviction notices, which have had this error, which makes me think there is a conspiracy to allow tenants to get judgements set aside more easily.

I would go down the Section 8 route on grounds 8, 10 and 11.

Mandy Thomson

6:55 AM, 29th September 2017
About A year ago

Reply to the comment left by Gary Dully at 29/09/2017 - 03:37
It is interesting that such an "error" should be repeated 3 times! I also once had a landlord who presented a perfectly valid section 8 claim, only to have it arbitrarily dismissed by the judge. He sought legal advice and was told it would be more trouble and expense to appeal it than simply do a new claim.


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