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What to look out for when checking a notice

Posted on 05/11/21 in Housing Matters

What to look out for when checking a notice

In this article, Madeleine Hunter, Noor Khan, Adam Lindsay and Ian McGarry outline the basic principles of checking whether a notice served by a landlord is valid, including checking whether the landlord has complied with the extended minimum notice periods during the pandemic. The authors are specialist housing caseworkers at Shelter.

When is a notice needed?

A notice is the first step in the landlord regaining possession of a rented property.  Eviction is a three-step process. After the notice expires the landlord must obtain a possession order and a bailiffs’ warrant before the tenant has to leave. 

This article does not cover notices for lodgers. 

What notice?

The type of notice a person is entitled to depends on what type of tenancy they have. For example, secure council tenants are entitled to more detailed notices than tenants who rent privately. It is not always clear what tenancy someone has from their written contract alone. It is always important to check the facts of the situation. A common problem for tenants is that the landlord describes them as a lodger, in order to avoid having to comply with the legal requirements of the full eviction process. 

Form, content and service

Most notices follow strict rules regarding form and content. For example, the correct form for the ‘no fault’ section 21 notice is the form 6A. If the notice is not served on the specified form, it must contain the same information to be valid. The form the landlord uses must be current when the notice is served. This is important because some forms have been updated throughout the coronavirus pandemic. 

Some notices must state the landlord’s reasons for eviction, known as grounds. The grounds are set out in the legislation and are specific to each tenancy type. Most private landlords can serve a section 8 notice if they can prove the tenant is in rent arrears. Alternatively, they can serve a section 21 notice which does not require grounds. 

A notice is served when it is given to the tenant. If a notice is sent by post, it is usually deemed to be received by the tenant two business days after posting, even if they have not looked at it. The landlord can also deliver the notice by hand. A notice can only sent by email if the contract allows for it.

The landlord must prove a notice was served if the tenant says they have not received it. The court will decide whether it is more likely than not that the notice was served. 

Dates matter

Most notices have a minimum period which is set out in legislation and calculated from the day the notice was served. How much time the landlord has to give the tenant depends on the:

  • tenancy type
  • notice
  • grounds for eviction

During the coronavirus pandemic tenants were entitled to longer notices. The minimum notice periods changed regularly and returned to the pre-pandemic rules on 1 October 2021. It is important to check what the minimum notice period was when the notice was served. 

The landlord must wait until the notice expires before applying for a possession order. There are rare exceptions, for example where the landlord relies on grounds for anti-social behaviour. 

Time limits for court action

After the notice expires, the landlord has a set period of time to apply for a possession order. The time limits vary depending on the notice type. During the pandemic the time limits to start court action for section 21 notice varied between six and ten months from when the notice expired. The landlord must apply to court within four months if they serve a two months’ section 21 notice on or after 1 October 2021.

Additional requirements and restrictions 

There are additional rules which may invalidate a notice, even if it appears valid. For example, section 21 notices are often invalid because the landlord has not complied with additional requirements relating to:

  • deposit protection
  • energy performance and gas safety certificates
  • How to rent guide

Other types of notices have their own additional rules. It is always important to check whether the landlord has complied with them. 

Check the contract

The contract can give the tenant more rights than they have under the law, although it cannot take their rights away. For example, a term in the tenancy agreement can give the tenant rights to a longer notice but cannot deprive them of the minimum notice length they are entitled to under the law. 

A tenancy agreement does not have to be in writing. It can be difficult to prove what was agreed if it has not been written down.

Further reading

Shelter Legal

Tenancy status checker
Notices in possession proceedings
Section 21 notices for assured shorthold tenancies
Restrictions on use of section 21 for assured shorthold tenancies
Covid-19: Protection for tenants

NHAS

Section 21 notices: getting the dates right
When landlords cannot use section 21 notice
Advising on section 21 notices: resources round up

Factsheets for the public:
• Section 21: accelerated proceedings
• Section 21: defences from 1 October 2018
• Section 21: notice periods
• Section 21: restrictions

Gov.uk

Tenancy forms including prescribed notice forms for private tenants