Possession Pitfalls - 5 Common Oversights
Since the freeze on residential possession claims came to an end in September 2020, Talbots have been inundated with possession cases, from claims being made due to rent arrears and nuisance, to landlords simply looking to sell their properties.
Seemingly straightforward possession claims can become both lengthy and costly when mistakes are made. This most commonly happens in cases where landlords deal with the matter themselves without seeking legal advice.
Here are 5 of the most common mistakes that we find cause issues with a landlord’s claim for possession.
1. Landlord’s address
Landlords are required to provide to their tenants an address within England and Wales at which notices in relation to the tenancy may be served on the landlord. If the address given to the tenants (usually in the tenancy agreement) for this purpose changes, the landlord must let the tenant know. The consequence of not doing so provides that rent will not be deemed as being due until compliance. This may cause issues if a landlord is seek to rely upon rent arrears to obtain an order for possession.
2. Who is the landlord?
If the property has been transferred from the original landlord, the new landlord must notify the tenants in writing that the property has been transferred. This does not necessarily mean that the property has been sold, as this would also apply if the original owner passed away and the property has been transferred to a beneficiary. Usually a notice of new address as discussed above will also be required in the circumstances.
Landlords are required to protect the tenant’s deposit and provide them with the prescribed information within 30 days of receipt. Failure to comply with these obligations will render a section 21 notice invalid until the breach has been rectified; for instance, returning the deposit. Though, once rectified, a landlord will be unable to use the accelerated procedure to make their claim for possession due to the previous breach.
4. The notice itself
To serve notice, either a section 8 or section 21 notice must be used, and both notices have prescribed forms that must be used. Due to the COVID-19 pandemic, the notice periods have frequently changed meaning that the forms have also changed several times over the course of the last 18 months. As a result, we have picked up on some errors made by both landlords and agents whereby the wrong form had been served or the notice period given had been incorrect. We also find that a lot of notice periods do not taken into account time for service of the notice. Any of these errors will invalidate the notice.
5. Section 21 prerequisites
A section 21 notice will be invalid if the following had not been served on the tenant prior to the notice:
- A valid gas safety certificate before the start of the tenancy or before the section 21 notice;
- An up-to-date Energy Performance Certificate;
- The “How to Rent: Checklist for Renting in England” before the tenancy or before the section 21 notice.
If you need advice relating to either Section 8 or Section 21 Notices or the best way to gain possession of your property please email Katie Jones or Josh Millichamp or call the team on 0800 118 1500 to find out how we can help you today.
For more information please contact us