What is a section 21 notice?
A landlord has a legal right to repossess his/her property at the end of an assured shorthold tenancy, which is typically the end date specified in the tenancy agreement. For this to happen, the landlord is required to follow the correct legal procedure, which includes serving a Section 21 notice (under Section 21 of the Housing Act 1988) to the tenant.
It is important to note that a Section 21 does not end a tenancy until the Court Bailiff has executed an order for possession. Therefore the service of a section 21 notice does not in itself bring a tenancy to an end, it purely informs the tenancy the landlord wishes to gain possession. In most cases, the tenants will leave without a court order, and serving the notice will be enough.
Types of section 21 notices
There are two types of section 21 notices. One is formatted specifically for notices served before the end of the fixed term and the other for after, which is known as a periodic tenancy.
Serving a section 21 during the fixed period
If you serve the notice before the end of the fixed term (including the last day of the fixed term) the notice must give a notice period of at least two months, and you will need to use a s.21 (1)(b) Notice.
So for example, if the fixed term starts on 15th January for a fixed term of six months (fixed term ends on 15th July), and you serve the notice on 8th June, the tenant will be entitled to remain in the property until the 8th August.
A s.21 (1)(b) cannot expire before the end of the fixed term but can be served at any point within it. A s.21 (1)(b) Notice does not have to be in any specific form and does not have to expire on any specific date, as long as the Notice gives two clear calender months notice of the landlords intention to recover possession then it is most likely legal.
Serving a section 21 after the fixed period (during periodic tenancy)
If you serve the notice after the fixed term, you are required to serve a Section 21 (4)(a) Notice, during a periodic tenancy, which for our example would mean on any day after 14th July, there is an extra requirement.
The notice must still give the tenant a notice period of not less than two months. However, the notice must give a date which must be the last day of a ‘period of the tenancy’. If this date is wrong, the notice will be invalid, and any claim for possession based on it will be invalid.
Under the provisions of the Housing Act 1988 (s5) a periodic tenancy will start immediately after the fixed term ends. So in our example this will be on 15 July and the periods will run from the 15th day in the month to the 14th. So any section 21 notice must give the first 14th day in the month after two months after service of the notice.
This is the difference in Section 21s: A section 21 (4)(a) must be served in a specific form and must expire on a specific date. Example, rent is due on the 26th of a month, the ‘period’ of my tenancy is from the 26th to the 25th. A section 21 (4)(a) Notice must expire on the last day of a period of a tenancy, the 25th in the example that I have used. (Landlords can now use a rider instead of putting in a date but lets keep it simple).
Maybe you need a Section 8 notice
The important point about serving a Section 21 is that it allows the landlord to repossess their property as of right- this means the tenant isn’t being evicted, but the landlord wants his/her property back. Please note, if you want possession during the fixed term then it can only be obtained if there any grounds for eviction or if the tenancy agrees to surrender the tenancy.
If you want to evict your tenant during the fixed term and have grounds to do so, a Section 21 notice is not appropriate. Use a Section 8- notice to quit instead. For further information, you may want to refer to the Difference between Section 8 and Section 21 Notice article.
It’s important to note that both sections are completely separate from one another. You can serve both at the same time (if relevant) and they won’t have any conflicting issues. You don’t need to cancel one before serving the other, they are totally separate mechanisms.
When can I serve a section 21 notice?
- Serving a section 21 can only be used to regain possession of a property at the end of an assured shorthold tenancy – it cannot be used to speed up possession during the fixed terms agreed, unless there is a break clause in the tenancy agreement.
- If you want to regain possession before the end of the agreed term, as mentioned, you can serve a section 8 – notice to quit, but only on the basis that the tenant has breached grounds for eviction.
- If a deposit is taken, it must be registered with a tenancy deposit scheme and prescribed information must be served before serving a section 21 notice.
If the deposit is not protected then return the deposit back to the tenant either in full or with agreed deductions. If the deposit is in a scheme but the prescribed information has not been served, serve the prescribed information before serving the section 21 notice. The prescribed information is key information relating to the deposit protection including details about the deposit, the scheme used to protect it, instructions about disputes and key contact information. More details about the prescribed information here
When is a section 21 not valid?
You cannot serve a section 21 in either of the following cases:
- where a tenancy deposit has been paid to the landlord/agent but not protected in a government authorised tenancy deposit scheme
- when a deposit is taken and secured, but the prescribed information relating the tenancy is not given to the tenant. This is key information relating to the deposit protection including details about the deposit, the scheme used to protect it, instructions about disputes and key contact information.
- if the property is an HMO which ought to be licensed but is not
- if a deposit has not been protected within the 30 day period (with some exceptions, which can be read here).
Many landlords are unable to serve valid Section 21 notices because they failed to secure the deposit and/or haven’t served the prescribed information. This can be tricky in the event that the tenant refuses to vacate. The best option here is to fully return the deposit, and then serve the notice, unless you have grounds for eviction. In that case, you can serve a section 8 notice- they can be served with or without the deposit being secured.
How long the notice remains valid and usable?
Once a section 21 notice is served, it will remain valid indefinitely unless it is ended by a new tenancy agreement being signed with the tenant. After this the landlord will need to serve a new section 21 notice to repossess the property at a future date.
There’s a post on the Painsmith landlord blog that explains the expiration of Section 21 notices in detail, but here’s the core of it:
If a tenant wishes to stay after the expiry of a section 21 notice for a short period this can easily be dealt with by simply sending a letter advising the tenant that the landlord will not be enforcing the expired possession order until a specific date.
Section 21 notices have no finite lifetime in which they can be used, they oldest reported case involves a section 21 notice which expired 6 years before the possession action began.
Service Of Notice
Completing and Serving notices aren’t always straight forward, so it’s imperative that great care is taken when doing it- getting it wrong can lead to delayed possession proceedings. It’s perfectly legal and common for landlord’s to serve and compile the notices, it doesn’t need to be done by a specialist. However, if you are are not confident, you should seek advise from an eviction specialist or solicitor to do this for you.
It’s extremely important that the dates written in the notice are correct- entering the wrong dates is the main reasons for notices being invalid and thrown out of court (if it gets that far).
A section 21 notice may be served by post or in person. If you plan on posting the letter yourself, it is important to be accompanied by a reliable witness that is not a relative of yours. If you want to post the notice, it is advised to send it recorded delivery, and that a minimum of three working days is allowed for the notice to arrive. Some experts recommend sending two notices from two different post offices to prevent the tenant from blaming the postal service being defective.
A section 21 notice can be served at any time, but the tenant must be given a minimum of two months notice, and in order for the notice to be valid, the tenant’s deposit must be protected in a Tenancy Deposit Scheme.
Who do I address the notice to?
All the tenants must be named in the notice and the names of the parties and the address should match those in the tenancy agreement. As a precautionary measure, serve each individual tenant with a separate notice.
Always keep a copy of the notice served and of any covering letter.
My tenant won’t leave
Once you have issued the section 21 notice on your tenant, you are required to wait until the notice has expired (this is the date given on the notice) before you can start possession proceedings.
Once the notice has expired, you should apply for an Accelerated Possession Procedure. This is a quick method for landlords to gain possession of their property. The procedure is called accelerated because in most cases the Judge makes the order based on the paperwork, without the need for a court hearing.
Please note, this method can only be used when:
- the tenancy is an assured shorthold tenancy (AST)
- there is a written form of tenancy agreement
- a valid form of section 21 notice has been served on the tenant
- the notice period (two months) in this notice has expired
- HMO landlords who need a license, have got one
- any deposit has been properly protected and the notice with prescribed information served
If you use the procedure, you can only claim possession and your costs of making the application. You cannot, for example, include a claim for arrears of rent. The court will normally make its decision by looking at the documents (‘written evidence’) which you and your tenant provide. Because your application will be dealt with in this way, you must give the court all the written evidence it needs to make its decision at the outset.
Go to the official Accelerated Possession Procedure HMCS page for more details on how to go down this route.