Being on the receiving end of an eviction notice can be stressful at the best of times, but it can be all the more confusing when the notice is issued completely out of the blue. For those not already aware, a Section 21 notice, otherwise known as a No Fault Eviction, grants landlords the ability to issue an eviction notice and reclaim their property from tenants for any reason, such as wanting to move back into the property or sell it. Section 21 is the first step a landlord must take to make you leave, after which you will have 2 months to move out.
While Section 21 notices are entirely legal, there is still a proper process that needs to be followed in order for the notice to be valid. You might be experiencing a lot of anxiety around the prospect of eviction and uncertainty around where you’ll live next, but knowing what your rights are as a tenant in this situation is the best way to ensure the proceedings are fair and, if they aren’t, how to take appropriate legal action.
Is My Section 21 Notice Valid?
The first thing you should do after receiving a Section 21 notice is to ensure that it’s completely valid. Despite the fact that landlords can issue a Section 21 notice on their terms, there are still several factors that can impact the notice’s validity. It’s important to know whether your notice is valid because if it isn’t, you may be entitled to challenge the eviction and stay in your home.
A Section 21 notice might be invalid if the landlord:
did not serve the form correctly (i.e. used the wrong form, did not give you two months’ notice or served the notice within the first four months of the tenancy)
did not follow the tenancy deposit rules (i.e. deposit is not protected within an authorised scheme or within a relevant time limit of 30 days, tenants haven’t been given all prescribed information or the deposit is something other than money)
did not provide an energy performance certificate (EPC) or gas safety certificate
did not provide the How to Rent guide
does not have a licence for the property, or has not applied for a licence
took a banned fee by charging for a prohibited payment or retaining a holding deposit
served the eviction notice after a complaint about the property (otherwise known as a retaliatory eviction)
If the Notice is Valid
If your Section 21 notice is valid, you’ll need to start thinking about the next steps with regards to where you’re going to live. If you have a good relationship with your landlord, it might be worth first asking them if you’re able to stay in the home for longer than the notice period. Send them a letter or email explaining your situation, and keep a record of any response you receive.
If this isn’t the case, it’s worth noting that your landlord cannot make you leave your home unless they’ve gone to court to obtain a possession order and a warrant for the eviction, at which point they can use bailiffs to evict you. However, your landlord cannot go to court until after the date that your Section 21 notice states you have to leave. If they try to force you to leave before this date, it’s considered an illegal eviction, and you might want to speak to a dispute solicitor to help you challenge it.
You have no obligation to leave your home before the date on your Section 21 notice if you haven’t found somewhere else to live. However, if you do choose to leave early, you’re still required to pay rent until the date your tenancy ends. This responsibility will only be waived if you agree with your landlord to end the tenancy early. If you do not pay your rent, your landlord could take you to court to get back any unpaid rent you owe them. They could also give you a bad reference or refuse to write one altogether, which could make finding another home difficult.
If you require support with rehoming, you can speak with your local council, who might be able to help you find elsewhere to live.
If the Notice Isn’t Valid
You are legally entitled to stay in your home if the Section 21 notice your landlord has issued is invalid. Your landlord will have to issue an entirely new notice if they would like you to leave.
If you find you have one or more reasons to challenge, what you do next will depend on your desired outcome. If you’d like to stay in your home for as long as possible, for example, you’ll want to sit tight when you receive your Section 21 notice and wait for your landlord to start possession proceedings. You don’t need to tell them straight away about the invalidity of the notice, but get some legal advice anyhow.
You’ll also need to know a little more about the court process so that you understand when you need to act if you’re going to challenge your landlord’s claim for a possession order. Typically, the process is as follows:
Landlord completes form N5B: Claim for possession of property. This, along with a copy of your tenancy agreement, your Section 21 notice and the court fee, is sent to court. They can also submit supporting documents related to your tenancy to back their claim.
The court sends you a copy of the claim form, your tenancy agreement and Section 21 notice along with form N11B: Defence form.
If you do nothing when you receive the landlord’s claim, the court will make the possession order. There will be no hearing unless you complete the Defence form. You should explain exactly what you disagree with in the claim.
If you do decide to return the Defence form, this must be done by the date set - typically around 2 weeks after the form was sent. If you miss the deadline, the court will make the possession order.
If the court receives the form in time, a hearing date will be fixed. The court will send you a notice telling you when and where this will take place. Hearings typically take place 6 weeks away or further.
At the hearing, the judge will listen to what you or your solicitor say and decide whether or not to grant your landlord a possession order, along with an order that you pay their legal costs.
If your challenge is successful, you can stay in the property and must go on paying rent as normal. While there is nothing to stop your landlord from sending out another Section 21 form immediately - which may well have corrected previous mistakes - this still buys you time to find safe, permanent accommodation elsewhere.
Seek Support from Landlord & Tenant Dispute Solicitors
If an agreement cannot be reached between yourself and your landlord, you should seek out a legal representative who is vested in housing disputes. A landlord and tenant dispute solicitor can help you with everything from eviction notices to breaches of contract. If you’re looking for tenancy law experts in Aberdeen, the North East, Moray or Angus, DJP Solicitors can help.
With our wealth of experience, we offer expert legal advice that covers the whole process, from beginning to end, prioritising clarity and thoroughness. We’re happy to assist both landlords and tenants in resolving disputes.
Not only do our specialist solicitors have a great understanding of the complex Scottish eviction laws, but they’ve also handled a broad range of types of disputes between all manner of people. Eviction can be a really stressful process to go through, for all parties concerned, which is why it must be handled swiftly but with care. So, look no further than Aberdeen’s DJP solicitors to ensure that you get the best possible outcome for your case.
If you would like further information regarding landlord and tenant disputes, please get in touch with us today.
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