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Notice of seeking possession of a secure tenancy

This content applies to England

A landlord must serve a notice of seeking possession (NSP) on a secure tenant before applying to the court for a possession order.

Covid-19: Extended minimum notice periods

For notices served between 26 March 2020 and 28 August 2020 the minimum notice period was three months for all claims.[1]

For notices served between 29 August 2020 and 31 March 2021 the minimum notice period is six months, unless exceptions apply.[2]

The relevant notice form has also been amended.[3]

Exceptions: notices served on or after 29 August 2020

Four weeks’ notice

The notice period is four weeks where possession is sought on the following grounds:

  • rent arrears where at least six months’ rent is unpaid[4]
  • conviction for an offence committed at a riot[5]
  • domestic violence[6]
  • acquiring the tenancy as a result of a false statement.[7]

Anti-social behaviour

Where the landlord is seeking possession on the discretionary anti-social behaviour ground, the standard notice period applies (see below).[8]

Where possession is sought on the mandatory ground for anti-social behaviour, the notice period must be:[9]

  • 28 days in case of a weekly periodic secure tenancy
  • one month if the tenancy is for a fixed term.

The above rules apply even if the notice lists other grounds in addition to anti-social behaviour.

The 'Technical guidance on eviction notices' document which forms part of the updated government guidance for landlords, tenants and local authorities contains a table summarising the minimum notice requirements for each tenancy.

See Grounds for possession of secure tenancies for more information about the circumstances in which a landlord can apply for possession of a secure tenancy.

Standard notice period

The following minimum notice periods apply to:

  • notices served on or before 25 March 2020
  • notices served on or after 29 August 2020 on the discretionary anti-social behaviour ground.

The NSP must state a date after which court proceedings can start. The general rule is that proceedings cannot commence earlier than the date on which the tenancy could be ended by notice to quit (ie a complete period of the tenancy, or four weeks whichever is the longer). Normally, the date after which court proceedings can start will be:[10]

  • at least four weeks after the service of the NSP, and
  • be the first or last day of the period of the tenancy (unless the tenancy agreement says otherwise).

However, court proceedings for claims under ground 2 can start immediately (see Discretionary grounds). An NSP served under ground 2 must state that court proceedings may be started immediately and give a date when the landlord requires the tenant to leave the property.[11]

Form and content

An NSP must:

  • be in the prescribed form, or substantially to the same effect[12]
  • specify the ground(s) on which possession is sought
  • set out the 'particulars' of the ground, ie explaining why the ground is being relied upon.

If insufficient particulars are given, then the possession claim should be struck out.[13] The landlord can ask for permission to add to or alter the particulars. Permission will be given where it would be just and equitable to do so.[14] If the particulars are inaccurate (eg the landlord states a rent arrears figure that is later conceded to have been wrong) the court can allow the claim to proceed or the particulars to be amended.[15]

Service

The landlord must serve the NSP on the tenant. In the event that the tenant disputes or does not acknowledge service of the notice, the landlord must prove that the NSP was served.

Section 196 of the Law of Property Act 1925 allows for valid service of the NSP 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.[16]

Joint tenancies

The notice must be served on all joint tenants and all tenants must be named on the notice, even if some are not resident.[17]

Duration and expiry

An NSP served on a periodic secure tenancy expires 12 months after the date in which court proceedings could first be issued. A landlord wishing to start proceedings beyond that period will need to serve a fresh NSP.[18]

Specific requirements when using mandatory ASB ground

Where possession is sought under the mandatory ground for antisocial behaviour (ASB) the NSP must:[19]

  • set out details of the conviction, order, or finding on which the landlord wants to rely to show the condition is met, and
  • specify the date after which court proceedings can start, which must be:
    • at least four weeks after the service of the NSP (or one month in case of a fixed-term flexible tenancy), and
    • the first or last day of the period of the tenancy (unless the tenancy agreement says otherwise).

An NSP served by a local authority or housing action trust must also inform the tenant of her/his right to request a statutory review (within seven days of service of the NSP) of its decision to seek possession.[20] A secure tenant of a private registered provider of social housing does not have this right.

The time limits for the service of the NSP on the tenant vary according to which condition is being relied upon:

  • for condition 1 (conviction of serious offence), condition 3 (breach of a criminal behaviour order), or condition 5 (noise nuisance) the NSP must be served within 12 months of the date of conviction, or if appropriate within 12 months of an appeal being decided or abandoned.
  • for condition 2 (an injunction to prevent nuisance or annoyance) the NSP must be served within 12 months of the date the court found the injunction had been breached, or if appropriate within 12 months of an appeal being decided, abandoned or withdrawn
  • for condition 4 (closure order) the NSP must be served on the tenant within 3 months of the date the closure order was made, or if appropriate within 3 months of an appeal being decided, abandoned or withdrawn.

For more information about the mandatory ASB ground see Mandatory ASB ground: Secure tenancies.

Dispensation from requirement to have served notice

The requirement for an NSP to have been served may be dispensed with if the court considers it 'just and equitable' to do so (eg where a tenant has caused a considerable nuisance to neighbours).[21]

Factors for the court to take into account include:[22]

  • the harm or hardship caused to both landlord and tenant
  • the effect of the notice not being served, and
  • whether the tenant has raised the notice point promptly.

Mandatory ASB ground

The court's power to dispense with the notice requirement does not apply where the landlord is seeking possession under the mandatory ground for antisocial behaviour.[23]

Wales

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

[1] ss.83 and 83ZA Housing Act 1985, as amended by paras 3 and 4, Sch 29 Coronavirus Act 2020; Part 1-2 Secure Tenancies (Notices) Regulations 1987 SI 1987/755 as amended by para 10 Sch 29 Coronavirus Act 2020; para 1 Sch 29 Coronavirus Act 2020.; see Sch 29 Coronavirus Act 2020 before 29 August 2020.

[2] ss.83 and 83ZA Housing Act 1985, as amended by paras 3 and 4, Sch 29 Coronavirus Act 2020, as amended by reg 3(4) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; regs 2(a)-(b) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914.

[3] see paras 10-12 Sch 29 Coronavirus Act 2020, as amended by reg 3(10)-(11) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; reg 2 The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Wales) Regulations 2020 SI 2020/1044 (W.233).

[4] Ground 1 Schedule 2 to the Housing Act 1985, see para 3 Sch 29 Coronavirus Act 2020, as amended by reg 3(4) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914.

[5] Ground 2ZA Schedule 2 to the Housing Act 1985, see para 3 Sch 29 Coronavirus Act 2020, as amended by reg 3(4) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914.

[6] Ground 2A Schedule 2 to the Housing Act 1985, see para 3 Sch 29 Coronavirus Act 2020, as amended by reg 3(4) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914.

[7] Ground 5 Schedule 2 to the Housing Act 1985, see para 3 Sch 29 Coronavirus Act 2020, as amended by reg 3(4) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914.

[8] Ground 2 Schedule 2 to the Housing Act 1985, s. 83(3) Housing Act 1985; reg 2(a) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914.

[9] s.83ZA Housing Act 1985, see reg see reg 2(b) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914.

[10] s.83 Housing Act 1985 and s.5 Protection from Eviction Act 1977.

[11] s.83(5) Housing Act 1985.

[12] Secure Tenancies (Notices) Regulations 1987 SI 1987/755; for temporary changes during the coronavirus pandemic see paras 10-12 Sch 29 Coronavirus Act 2020, as amended by reg 3(10)-(11) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; reg 2 The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Wales) Regulations 2020 SI 2020/1044 (W.233).

[13] Torridge v Jones (1986) 18 HLR 107, CA.

[14] Camden LBC v Oppong (1996) 28 HLR 701, CA.

[15] Dudley MBC v Bailey (1990) 2 HLR 424, CA.

[16] 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.

[17] s. 45(3) Housing Act 1988; Newham LBC v Okotoro March 1993, Legal Action 11, Bow County Court; Ch.2.42 Defending Possession Proceedings, 8th ed., LAG 2016.

[18] s.83(3)(b) Housing Act 1985.

[19] s.83ZA Housing Act 1985 as inserted by s.95 Anti-social Behaviour Crime and Policing Act 2014.

[20] s 83ZA(3) Housing Act 1985 as inserted by s.95 Anti-social Behaviour, Crime and Policing Act 2014; s 85ZA(1) Housing Act 1985 as inserted by s.96 Anti-social Behaviour, Crime and Policing Act 2014.

[21] s.83(1)(b) Housing Act 1985.

[22] Kelsey Housing Association v King (1996) 28 HLR 270, CA.

[23] s.83ZA(2) Housing Act 1985 as inserted by s.95 Anti-social Behaviour Crime and Policing Act 2014.

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