The Rent Arrears and the Section 21 Question
A tenant is two months in arrears on a rent of £1,100 per month. The tenancy is a 12-month AST that began eight months ago. The deposit was protected and prescribed information was served at the start. The tenant has been in contact, says she has lost her job, and has offered £200 a month towards the arrears. The landlord wants to serve a section 21 notice now and 'get her out'. The property has a current gas safety certificate and EPC, and the tenant was given the government's How to Rent guide at the start. There is no history of complaints.
1. Can the landlord serve a valid section 21 notice now? Explain the conditions.
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A section 21 notice can only be served if the legal preconditions are met. On these facts:
- The deposit is protected and prescribed information was served, so that condition is satisfied.
- A current gas safety certificate and EPC are in place, and the How to Rent guide was given, so those conditions are satisfied.
- The tenancy is an AST and the notice would give at least two months.
So a section 21 notice could be validly served. However, validity is not the same as wisdom. The landlord should consider whether possession is the right outcome given the tenant's willingness to pay something and the cost and time of possession proceedings. The agent should also check the tenancy agreement for any break clause and confirm the correct notice form and date.
2. What are the alternatives to possession, and how should you present them to the landlord?
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Alternatives:
- A written repayment plan for the arrears, for example the £200 a month offered, with a review date.
- A temporary reduction in rent if the landlord agrees, though this may not be practical.
- Referring the tenant to benefits advice or a debt charity.
- A payment arrangement recorded in writing and monitored monthly.
Presenting them:
- Set out the arrears figure, the tenant's offer, and the likely cost and timescale of possession proceedings.
- Explain that possession will not recover the arrears and may leave the landlord with a void period and legal costs.
- Recommend a repayment plan with a clear default trigger, so the landlord retains the option to serve notice if payments stop.
- Record the landlord's decision and the reasons.
3. If the landlord insists on section 21, what should you do and what should you avoid?
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If the landlord insists:
- Confirm in writing that the preconditions are met and that you have advised on alternatives.
- Serve the correct prescribed form with the correct notice period and expiry date.
- Keep copies and proof of service.
- Explain that the tenant does not have to leave at the end of the notice and that the landlord would need a court order to evict.
- Warn that the tenant may ask the court to consider the arrears and any vulnerability, and that the court process takes time.
Avoid:
- Telling the tenant to leave by a date or implying they must go without a court order.
- Harassing the tenant or changing the locks.
- Serving a notice that is invalid because of a date or form error.
- Discussing the tenant's personal circumstances with other tenants or third parties.