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Notices: Introductory tenancies

This content applies to England

A landlord must first serve a section 128 notice on an introductory tenant before applying to the court for a possession order.

For further information about the the procedure for getting possession of a property let on an introductory tenancy see the page Landlord ending an introductory tenancy.

Form and content

A landlord must serve a notice of proceedings for possession, known as 'section 128 notice', before going to court. There is no prescribed form but the notice must:[1]

  • inform the tenant of the intention to seek an order for possession from the court
  • give the local authority or housing action trust's reasons for doing so
  • give the earliest date when proceedings may begin, which must be no earlier than the date on which the tenancy could be terminated by a notice to quit
  • inform the tenant of her/his right to seek a review within 14 days
  • inform the tenant that if s/he needs help or advice about the notice, s/he should go to a Citizen's Advice Bureau, a housing aid centre, a law centre or a solicitor.

A section 128 notice can be comprised (and the information above included) in more than one document, for example in a notice of proceedings for possession and accompanying information leaflet, provided that the reasonable receipient would understand that the documents are intended to be read together.[2]

Service

The landlord is not required to serve the section 128 notice in any particular way. In the event the tenant does not acknowledge service, the landlord must prove that the notice was served.

Section 196 of the Law of Property Act 1925 allows for valid service of the section 128 notice to be made by registered post or recorded delivery, or personal delivery to the tenant's property, but only when the tenancy agreement explicitly states that service will be effective where it is done in accordance with section 196. Alternatively, the agreement can provide expressly for service by these methods.[3]

Right of review

The tenant has 14 days after the section 128 notice has been served to request a review of the landlord's decision to repossess.[4] There is no prescribed form for a tenant to request a review, s/he can make the request in any way s/he chooses.

In a case where the landlord included an attached form, with the section 128 notice, informing the tenant that she should complete it in order to request a review, the notice was held not to be defective as completing the form was just a recommendation and did not exclude other options for requesting a review.[5]

Regulations give details as to the specific procedure that must be followed on review.[6] These include the following:

  • there can be no oral hearing unless the tenant has requested one within 14 days of service of the notice
  • if the tenant has requested an oral hearing in time, then the landlord must notify the tenant as to the date, time and place of the hearing, and the tenant must be allowed to state her/his case during the hearing. This can include calling witnesses and questioning those giving evidence
  • if the tenant has not requested an oral hearing in time, s/he can provide written representations
  • the review must be carried out by someone who was not involved in the original decision to seek possession. The landlord must carry out the review and inform the tenant of the outcome before the date for commencement of court proceedings given in the notice.[7] It must give reasons if the original decision is upheld.[8] The review should consider the merits of seeking possession in the particular case. Tenants can put forward evidence as to why they should not be evicted. Guidance states that introductory tenancies can never be used as a weapon against vulnerable tenants, including older people, or people suffering from mental health problems/physical disability, or where there are other special reasons.[9] If an adviser has reason to believe that such vulnerability has contributed to the tenant being threatened with eviction, there would be clear grounds to request a review.

If the tenant's review is successful, s/he will continue as an introductory tenant until the original trial period has come to an end.

Expiry of notice

When seeking to evict an introductory tenant, the landlord must begin possession proceedings within 12 months of the start of the tenancy, or 18 months if the trial period has been properly extended (see the page on Duration of introductory tenancies for more details).

If the landlord does not begin proceedings within that time, the tenancy will automatically become secure. The date when proceedings begin is the date that the court issues the claim form, not the date the landlord issues possession proceedings, nor the date that the claim for possession and the particulars of the claim are received by the court.[10]

Once court proceedings have actually begun, the tenancy remains introductory until the proceedings and any consequent appeals are completed, even if the trial period ends during this time. If the tenancy ceases to be introductory because the local authority or housing action trust revokes the introductory tenancy scheme or no longer fulfils the condition for granting secure tenancies - eg it ceases to be a local authority or housing action trust (see the section on Secure tenancies), then legal proceedings in progress may continue nevertheless and be decided as if the tenancy were still introductory.[11]

There could be a defence to possession proceedings if a section 128 is defective, and there have been a number of cases that examined the situation where the landlord issues a section 128 notice but postpones acting on it until a later date following the outcome of a review. The question raised was whether a fresh notice with fresh review rights is required. For more information on these aspects see Possible defences and challenges: Introductory tenancies.

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] s.128 Housing Act 1996.

[2] Islington LBC v Dyer [2017] EWCA Civ 150.

[3] Wandsworth LBC v Attwell (1995) 27 HLR 536, CA; s.196 Law of Property Act 1925, as amended by the Recorded Delivery Service Act 1962.

[4] s.129 Housing Act 1996.

[5] Wolverhampton City Council v Helen Shuttleworth [2012] EWHC Birmingham District Registry.

[6] Introductory Tenants (Review) Regulations 1997 SI 1997/72.

[7] s.128(6) Housing Act 1996.

[8] s.128(5) Housing Act 1996.

[9] Department of the Environment Circular 2/97.

[10] Salford CC v Garner [2004] EWCA Civ 364.

[11] s.130 Housing Act 1996.

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