Assured tenancies - Notices
Some guidelines on Notices and effective service in relation in relation to possession of property
Section 8 Notices - Notice Seeking Possession (NOSP)
Notice must be served under Section 8 of the Housing Act 1988 before the Court will entertain an application for possession based on one of the grounds in Schedule 2 (subject to discretion to dispense with such a notice in the case of all grounds except Ground 8).
The Section 8 Notice is in prescribed form which should always be used. The form contains gaps where the landlord should set out the grounds he relies on and the particulars in relation to those grounds.
It is not necessary to set out the exact wording of the statute when providing the grounds, so long as the substance is set out. The purpose is to warn the tenant that he may lose possession of his home and to give him sufficient information to know what steps he should take to avoid this. Therefore of course the safest course is to cite the grounds verbatim.
It should be noted that the Court also has power (under Section 8 (2)) to allow landlords to add to the grounds relied on in a Section 8 Notice. Particulars of grounds as well as the grounds themselves can be amended or added to. The Notice should set out the fullest particulars possible, particularly in relation to nuisance claims (Ground 14). As already stated above the purpose of the Notice is to give the tenant the opportunity to avoid losing his home; he should therefore know exactly what allegations he will face at trial.
Section 20 Notices (Use for Assured Shorthold Tenancies)
It is no longer necessary to serve a Section 20 Notice in relation to new tenancies as they will automatically be Assured Shorthold Tenancies (subject to certain exceptions). It is still necessary however to consider the validity of Section 20 Notices in relation to purported assured shorthold tenancies which were entered into before the 28th February 1997.
There is a prescribed form: Form 7, under regulation 2 of the Assured Tenancies and Agricultural Occupancies (Form) Regulations 1988 (SI 1988 No 2203). In a particular Court of Appeal case Manel -v- Memon (2001) 33 HLR 24, the notice omitted various bullet points including one which advised the tenant to seek advice. The bullet points were held to be part of the substance and the notice was therefore invalid. Generally the trend has been to view Section 20 notices in a very liberal way but the most important fact is whether it informs the tenant of the nature of the Assured Shorthold Tenancy (AST). Mistakes in the particulars are now much less likely to be found to be fatal than was previously the case.
Section 21 Notices
Landlords can recover possession of a property let under an AST following the expiry of any fixed term by serving a Notice under Section 21 of the Housing Act 1988. All such notices must give the tenants at least two months notice.
Periodic Tenancies
A contractual periodic tenancy can only be ended by serving a notice under Section 21(4). This must give the tenant two months' notice, require possession after a specified date which must be the last day of a complete period of the tenancy and state that possession is required under Section 21.
In a recent Court of Appeal case section 21(4) was construed very strictly and it was held that a notice which required possession after the end of a complete period was invalid. The common law rule that a notice to quit can expire on the last day of a period or the first day of the next period was held not to apply to Section 21 Notices. In an earlier Court of Appeal case it was held that it was not necessary to give an actual date but a notice could require possession "at the end of the period of your tenancy which will end after the expiry of two months from service of this notice".
Some landlords specify a date and then add a saving provision i.e. an omnibus clause as quoted above.
Fixed term tenancies
Section 21(1) provides that a Court shall make an order for possession of a dwellinghouse let on a fixed term tenancy where the fixed term has expired and a notice has been served under Section 21(1) (b). Section 21(2) provides that a notice under Section 21(1) (b) may be given before or on the day on which the fixed term comes to an end.
The advantage of serving a Section 21(1) (b) notice is that it does not need to expire on any particular day, thus reducing the risk of errors and avoiding unnecessary delay in waiting for the end of a period. A landlord will be well advised therefore to serve a Section 21(1)(b) before the expiry of the term.
There is no reason why a landlord should not serve a Section 21(1) (b) notice before the end of the term. There is no reason he cannot accept rent from the tenant after service of such a notice as it does not have the effect of determining the tenancy. On the contrary, it is merely a pre-condition of the Court making an Order under that Section. Until an Order is made the statutory periodic tenancy will continue, so the landlord is entitled to accept rent without being at risk of creating a new tenancy.
It is possible to actually serve a Section 21 (1) (b) notice at the start of a tenancy so that landlords can obtain the tenant's signature on the notice when the tenancy agreement is first entered into. However, landlords must be careful to ensure that the tenancy is signed first because a Section 21 notice may not be valid until after the tenancy has been entered into. The landlord should therefore seek to put a time on the tenancy agreement and the notice to prove the order in which each was signed.
Service of Section 8 and section 21 Notices
These notices must be served by a method which is authorised by the tenancy agreement. For instance, the tenancy agreement may state that notices are validly served if delivered or posted to the premises. If service is in accordance with the tenancy agreement proof that the notice came to the attention of the tenant is unnecessary. If the tenancy agreement does not contain any provision about the service of notices, one would have to prove on the balance of probabilities that the notice did come to the attention of the tenant. On the other hand, personal service is the only 100% safe course. Evidence of service must be available at the hearing.
Where the NOSP relates to Ground 14 (Nuisance), court proceedings may begin the same day as service of the notice.
Notice to Quit (NTQ)
This type of notice is appropriate where the tenant has lost security of tenure for example through non-occupancy, or has died. A licensee would also be served a Notice to Quit. If the tenant dies testate, an NTQ must be served on his personal representatives, in whom the tenancy will have vested. Service may be effected upon them personally or at the property as long as the tenancy agreement incorporates the provisions of section 196 of the Law of Property Act 1925. If, on the other hand, the tenant dies intestate, the tenancy will vest in the Public Trustee until the grant of administration. Once the landlord has notice of a tenant's death, an NTQ must be served to determine the tenancy.
The notice should be addressed to "The Personal Representatives of" the deceased and left at or sent at his last known place of residence or business in the United Kingdom, and a copy of it, similarly addressed, is served on the Public Trustee.
In general an NTQ must state the date it is to expire, and this must be a rent day. In addition, section 5(1) of the Protection from Eviction Act 1977 provides that no notice (by a landlord or tenant), to quit any premises let as a dwelling, will be valid unless (inter alia) it is given not less than four weeks before the date on which it is to take effect.
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