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This article forms Part Two of a mini-series; Part One focussed on some of the key issues in the management of mixed use premises not directly associated with termination of the residential tenancy. This article focuses on the termination of such tenancies via section 21 of the Housing Act 1988. Part Three will address terminations under section 8 of the same Act.
As was the case in Part One, this article assumes that the type of tenancy being considered is an assured shorthold tenancy.
The termination of such tenancies is a highly regulated area and one in which great care must be exercised; it is very easy to get it wrong and many technical breaches can prove fatal. Indeed, there are only two effective ways of forcing termination; that via section 8 of the Housing Act 1988 and that via section 21 of the same Act.
It should also be made clear that service of a notice pursuant to one of the methods highlighted above does not bring such a tenancy to an end; this can only be achieved by the tenant acting in accordance with the notice and leaving or the Court making an Order for Possession.
The primary (and most common) method of terminating an assured shorthold tenancy is via notice served pursuant to Section 21 of the Housing Act 1988 (“Section 21”).
Under Section 21(i), provided that notice is served on or before the day on which the tenancy comes to an end, the Court will make an Order for Possession if it satisfied that:
Alternatively, in the event that notice is being served after expiry of the tenancy, the Court will make an Order for Possession under Section 21(4) if it is satisfied that:
Absent human rights’ issues, there is therefore no element of discretion available to the Court; provided that the landlord can prove the two elements that relate to the relevant notice then the Court is bound to grant the Order.
However, there are a number of considerations that commonly cause landlords difficulty in this regard.
These include (but are not limited to):
It is therefore essential that landlord treads with the utmost care when seeking to bring a tenancy to an end via the section 21 notice route. Whilst the risk of failure is significant, the rewards for those who get it right give much greater certainty to the possession process.
For more information please contact Tim Jenkins, Partner
T: +44 (0)1483 252529