Assured shorthold tenancies and the six month requirement
As a result of section 36 of the Deregulation Act 2015, if a periodic assured shorthold tenancy (AST) commenced after 1 October 2015, there is a requirement to begin possession proceedings within six months of serving notice on an assured shorthold tenant pursuant to section 21 of the Housing Act 1988
On the assumption that a gas safety certificate, energy performance certificate and the How to Rent Checklist have been served in the appropriate circumstances, the process a landlord has to follow and the issues a landlord should be aware of are detailed below:
- Notice pursuant to section 21 of the Housing Act 1988 can be served after an AST has been in existence for four months. If a landlord wants to serve notice within four months of a periodic AST commencing they would have to serve notice pursuant to section 8 of the Housing Act 1988 as possession based on no fault of the tenant is not possible in such circumstances.
- The prescribed wording of a section 21 notice is contained in Form 6A which is also called "Notice seeking possession of a property let on an Assured Shorthold Tenancy" (Notice).
- The Notice must give a tenant two clear calendar months' notice (not eight weeks' which is a common error made). Landlords should remember to allow additional time if the Notice is being served by post. Under the Civil Procedure Rules, if a document is served by first class post, for example, it is deemed served the second business day after posting (if second class post is used a longer period should be allowed). If delivered to a property/personally served before 4.30 pm on a business day the Notice will be deemed served the same day and if after this time it will be deemed served the following business day. A business day is any day with the exception of a Saturday, Sunday or a bank holiday, Good Friday or Christmas Day.
- Section 21(4D) of the Housing Act 1988 provides that, after the four calendar months' notice has expired, a landlord then only has two months to ensure possession proceedings are begun as the legislation states possession proceedings must be begun within six months beginning with the date Notice was served. Failing this the Notice will no longer be valid and a fresh one will have to be served. It should be noted that the court has no power to dispense with the service of this type of Notice.
- For the purposes of section 21(1) or 21(4) of the Housing Act 1988 proceedings are begun when they are issued not when the possession claim is received by the court.
Whilst four months sounds like plenty of time, once a possession claim has been sent to the court, a landlord has no ability to control when the proceedings are begun as clearly, this is down to how the court deals with its day to day work.
The pressure on courts as a result of cutbacks is increasing and in some courts there are serious delays in dealing with day to day matters such as the issuing of proceedings. Court users are often advised not to contact the court within 10 working days of sending correspondence and on occasions this has extended to 42 working days (i.e. seven weeks).
Landlords need to bear this in mind as they may easily find that, through no fault of their own, proceedings have not begun within six months of Notice being served. In such circumstances their claim for possession will automatically fail, they will have to start the process again from scratch resulting in delay and additional expense as the court issue fee will have to be paid again.
In order to reduce the possibility of such a situation arising when landlords are issuing such proceedings they should consider:
- Sending the possession claim to the court as soon as possible after the Notice period has expired;
- Stating the day by which the proceedings are to be begun in bold in the covering letter to the court;
- Diarising to chase the court if nothing is heard within a timely manner;
- If the deadline is fast approaching, consider telephoning the court or making an appointment with it to obtain guidance on how best to deal with the matter.
Whilst landlords are still able to give the old form of notice pursuant to sections 21(1) or 21(4) in respect of periodic ASTs which commenced before 1 October 2015 this ability will cease from 1 October 2018. As from this date the Form 6A form of section 21 notice will have to be used to recover possession, on a no fault basis going forward, for all periodic ASTs which are in existence at that time.