TIPS AND TRAPS
At the current time, most tenancies currently in existence are Assured Shorthold Tenancies ( AST )The general rule was that it was relatively easy to obtain possession on service of the section 21 notice on an AST but a number of changes in the law have made the whole process extremely difficult for the Buy to Let Landlord seeking possession.All these difficulties and technical rules have meant that getting it wrong could result in costly delays at Court meaning that rent is not being collected and at worse adjournments which could result in orders for costs against you as the landlord.

Whilst the government is in consultation about doing away with the section 21 notice, no final decision has been made and with the current uncertainty in the political climate and Brexit, it is not known when the final decision will be reached. In the meantime, Landlords need to go through the minefield of working out how to secure early possession, but a number of tips can be given.

  1. Prior to service of the section 21 notice there are certain documents that have to be given for example the gas safety certificate. Make sure that you give a valid gas safety certificate before the tenancy commences. Currently In a case called Caridon Property Limited v Schooltz (2018) HHJ Luba QC held that failure to give the gas safety certificate prior to occupation meant that it was not possible for the landlord to rectify the breach later. This decision is highly persuasive and most County Court judges will follow this but it is problematic as it leaves some landlords in an impossible position. The question is now going to be decided by the Court of Appeal on the 28th of 29th of January 2020.
  2. Make sure that you serve the up-to-date “how to rent” booklet. The law also implies that in the case of a renewal the updated document will be required, but prior to service of the update you need to be sure that the correct version at the time of service of the section 21 notice has been given. This sometimes can cause more complications as the correct versions are quite difficult to obtain.
  3. Make sure you serve the EPC before the commencement of the tenancy. Can tenants who do not receive EPC before the commencement of the tenancy run a similar argument to that seen with the gas safety certificate? Therefore, to avoid this complexity, make sure the EPC is given before the tenant moves in.
  4. Keep records of when you give each of the mandatory documents so that the tenant cannot argue they did not receive it.
  5. If you are an agent, breaching the Tenant Fees Act 2019 where additional payments are requested by the agent other than permitted payments could prevent a section 21 notice from being issued.

On all these issues please contact us for further advice and assistance.