Please note, this is just a general overview which apply primarily to Assured Shorthold Tenancies in England and Wales. This post does not provide any legal advice.
Page contents:
- What is a Section 21 notice?
- Types of Section 21 Notices
- Maybe you need a Section 8 Notice
- In order for your Section 21 to be valid
- Serving a Section 21
- How long does a Section 21 notice remains valid for?
- Who do I address the notice to?
- My tenant won’t leave even though I have served a Section 21 notice
What is a Section 21 notice?
A Section 21 notice is a document that is served by the landlord (or agent) to a tenant in order to give advance notice of repossesion (tenancy termination). It is NOT an eviction notice, it is simply a notice saying, “Hey, as soon as the tenancy comes to an end (e.g. the fixed end date has expired), I want you to vacate the premises”
A landlord has a legal right to repossess his/her property at the end of an Assured Shorthold Tenancy (AST), 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 serving a section 21 can only be used to regain possession of a property at the end of an assured shorthold tenancy (unless there is a break clause in the contract), and a tenancy does not end until the tenant surrenders the tenancy by vacating the property and [usually] handing back the keys.
Types of Section 21 notices
There are three types of section 21 notices available for ASTs in England & Wales.
- Section 21(4)a – this notice should be served during a periodic tenancy (this is when a tenancy has passed it’s fixed end date and the same tenants remain occupants, but new contracts have not been signed) in England or Wales. If the tenancy is in England, this notice should only be served if the fixed start date of the tenancy started before October 2015.
- Section 21(1)b – this notice should be served during the fixed term of a tenancy in England or Wales. If the tenancy is in England, this notice should only be served if the fixed start date of the tenancy started before October 2015, otherwise use the S21 FORM 6A.
- Section 21 FORM 6A – this is only for tenancies in England (not Wales) and can be used for all Assured Shorthold Tenancies (i.e. in some cases, you could serve either this notice or 21(4)a/21(1)b, depending on the tenancy start date), but must be used if the tenancy started on or after 1st October 2015.
You can find all mentioned Section 21 notices available for download over here.
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 landlord is entitled to regain possession of their property after the fixed period, as long as the tenant has been given the appropriate notice period. Please note, if you want possession during the fixed term of a tenancy, then it can only be done 1) if there are grounds for eviction 2) if the tenant willingly agrees to surrender the tenancy and you agree 3) there is a break clause in the contract which permits an early termination.
If you want to evict your tenant during the fixed term and have grounds to do so, a Section 21 notice may not be suitable, a Section 8- notice to quit could be the most effective route. 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 notices 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.
In order for your Section 21 to be valid…
Ok, this is where it gets a little tricky, but it’s extremely crucial to understand, so I’ll try to make it as simple as possible.
It’s crucial to serve a valid Section 21 notice in the event the tenant refuses to vacate, in which case you may need to take legal action. In those circumstances, the law will only grant you possession if the correct procedures have been taken, which includes serving a valid section 21.
In order for your Section 21 to be valid (i.e. enforceable by law), the following must be true…
For tenancies in Wales or England that started before October 2015
- Deposit must be secured into a tenancy deposit scheme within 30 days of receiving the deposit (this only applies if you have taken a deposit).
- Assuming a deposit is received and secured into a deposit scheme, you must also have served your tenant with the scheme’s prescribed information also within 30 days of receiving the deposit.
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
- If the property is an HMO (House of Multiple Occupants) it must have a licence.
For tenancies England that started on or after October 2015
A lot more requirements crept in at this stage…
- 1) Secured tenant’s deposit into a tenancy deposit scheme within 30 days of receiving it (if a deposit was taken).
- 2) Served the deposit scheme’s prescribed information within 30 days of receiving the deposit.
- 3) Supplied the tenant with copy of an Energy Performance Certificate (EPC) before the tenancy begins, ideally during the viewing.
- 4) Supplied tenant with a valid Gas Safety Certificate before the section 21 notice is served. On a side note, it was once believed that in order for a Section 21 to be valid, the gas safety certificate needed to be served before the tenancy began, but that has been said to be unnecessary in the court of law, Trecarrell House Ltd v Rouncefield [2020].
- 5) Supplied tenant with an up-to-date copy of the “How to rent” guide, which can find out more about and download from here.
- 6) The property must be licensed where the law requires – either a mandatory HMO or in an area that is subject to Selective or Additional licensing. If you are unsure if you are subject to licensing, I recommend contacting your local council.
- 7) The notice will not be valid if there’s evidence of ‘retaliatory eviction’, which means…
- the tenant has made a written complaint to the landlord about the condition of the property before the notice was served; and
- the landlord has not provided an adequate written response (e.g. clarify what actions you are going to take to resolve the problem and to what timescale) within 14 days; and
- the tenant has then complained to the relevant local authority about the problem, who then serve an “Improvement Notice.”
For tenancies England that started on or after 1st June 2019
On 1st June 2019 the “Tenant Fees Act 2019” came into force, which is a legislation that focuses on banning and restricting letting agents and private landlords (in England) from charging tenants with certain fees, which includes charging referencing fees and oversized deposits.
In short, if your tenancy started on or after 1st of June 2019, you are only permitted to charge tenants the following “Permitted Payments” as set out by the Act:
- Rent
- Tenancy deposit (capped at five weeks’ rent if rent is less than £50k per year, or six weeks’ rent where the total annual rent is £50k or above).
- Holding deposit (capped at one week’s rent)
- Payments to change the tenancy when requested by the tenant (capped at £50).
- Payments associated with early termination of the tenancy, when requested by the tenant.
- Payments in respect of utilities, communication services, TV licence and council tax.
- A default fee for late payment of rent and replacement of a lost key/security device, where required under a tenancy agreement.
If you have charged your tenants with anything other than what is listed above, such as ‘referencing fees’, ‘inventory costs’, or costs associated with ‘professional end of tenancy cleaning’ services, then you’ve most likely unlawfully charged your tenants with a “Prohibited Payment”, in which case you cannot evict a tenant using the section 21 eviction procedure until you have repaid any unlawfully charged fees or returned an unlawfully retained holding deposit. For more details, refer to the “Tenant Fees Act 2019” blog post.
I’m not going to beat around the bush, so just to clarify: if you have not met the requirements to serve a valid Section 21 notice, then you are going to have a very difficult time trying to repossess your property if your tenants are reluctant to leave, especially if you have no grounds for eviction. If you are in that predicament, I would highly recommend speaking to a specialist tenant eviction company or seeking legal advice.
When can I serve a Section 21 notice (i.e. how much notice must I give my tenants)?
Generally speaking, in most cases, giving two clear months’ notice should be sufficient, particularly if you collect on a weekly or monthly basis (which is 99% of the times the case). But here are the specifics…
If you are serving a Section 21(4)a (for periodic tenancy)
Tenant should receive at least two months’ notice.
Let’s assume the tenancy started on the 15th January 2011 and is for 6 months, so the fixed tenancy period will end on the 14th July 2011, so therefore the tenancy will become a ‘rolling monthly contract’ on the 15th July 2011 (assuming rent is paid monthly, which it usually is), the first periodic period will run from the 15th of July 2011 to 14th August 2011.
So now let’s assume it’s the 17th of September 2011, and you wish to repossess the property on the 14th of January 2012 (the date should be the same as the last day of the periodic period). To be valid the notice must make it clear to the tenant that possession is required AFTER the last day of the period– so the “date of expiry” should be 14th of January 2011, and the tenant must receive the notice 2 months before then.
The date you serve the notice is not important; it is the end date (notice date) which is crucial. However, your notice must include the date the notice is served so that the court can see that the full notice period has elapsed.
You see an example of how I completed a Section 21(4)a here.
If you are serving a Section 21(1)b (for fixed term)
A Section 21(1)b can be served immediately after all the requirements (i.e. the relevant requirements listed above for this particular notice) have been met. So in theory, it could be served a week after the tenancy started.
You must give the tenant at least two months notice for repossession. That means the tenant should receive the notice two months before the last day. The last day/date should be on same date as when the tenancy started. So for example, if the fixed term started on 15th January 2011 for a fixed term of six months (fixed term ends on 15th July 2011), the tenant must receive the notice on or before the 15th of April 2011 if you want them to vacate on the 14th of August (the 15th would be the start of a new month).
If you are serving a Section FORM 6A during a fixed term
Unlike the old Section 21 notices, there is no need for landlords to end their notice on a period of a tenancy (e.g. if the tenancy started on the 15th July 2015, we won’t need to end it on the 14th of July 2015). They just need to comply with the correct time period.
Minimum of two months notice is required and you cannot serve the notice within the first 4 months of the start date of the fixed term (this 4 month rule does not apply to tenancy renewals or tenancies that roll onto periodic tenancies; the first 4 months are taken as the first 4 months of the original tenancy).
If you serve a Section 21 FORM 6A during the fixed term and then let the tenancy roll over into a Periodic Tenancy, the section 21 will no longer be valid, and you will need to serve another notice.
If you are serving a Section FORM 6A when the tenancy has become a Statutory Periodic
The minimum 2 months’ notice period remains the same as long as the periodic period runs weekly or monthly (that’s based on when rent is paid). Where a tenancy period runs quarterly or biannually, landlords will still need to give an appropriate matching period of notice (e.g. 3 months’ notice for quarterly tenancy periods, 6 months’ notice for biannual and above).
How long does a Section 21 notice remain valid for?
If you are serving a Section 21(4)a or a Section 21(1)b, then the following applies…
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.
If you are serving a Section Section 21 FORM 6A, then the following applies…
If the Section 21 was served in the fixed term, you have a “use by date” of 6 months. After that, you will need to serve another notice (which will expire again after 6 months).
If the tenancy has become a Statutory Periodic and the rolling contract is on a weekly or monthly basis, it will also expire after 6 months. However, if the periodic tenancy requires more than two months’ notice (e.g. if the rolling contract runs quarterly), possession proceedings will need to be started within 4 months of expiry of the notice, otherwise a notice will need to be re-served.
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 even though I have served a Section 21 notice
If you have served notice and your tenant has failed to vacate on the date specified and refuses to vacate, you can apply for an Accelerated Possession Procedure (assuming your section 21 is valid). 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.
If you use the procedure, you can only claim possession and your costs of making the application. However, 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.
Before taking action, you should seek professional advice from an expert. I strongly recommend talking to an eviction specialist.
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Disclaimer: I'm just a landlord blogger; I'm 100% not qualified to give legal or financial advice. I'm a doofus. Any information I share is my unqualified opinion, and should never be construed as professional legal or financial advice. You should definitely get advice from a qualified professional for any legal or financial matters. For more information, please read my full disclaimer.
Any documents you download from this website are just examples of its kind and should be checked by a professional. I give no warranties or representations concerning the documents, and accept no liability in relation to the use of the documents.
Hi I issued my tenant with a section 21 which expires next week she is refusing to leave on instruction by the council, however my living situation has changed and I have to move into my own property with my 3 children, she is still refusing to leave but I'm moving in regardless of if she's there or not, I won't be changing the locks, what is the worst that can happen to me?