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POSSESSION (ACCELERATED): Section 21 Notice

Non fault based possession

Accelerated possession is not fault based.  It therefore does not require the tenant to be in breach of any of the terms of a tenancy for a landlord to issue a Section 21 Notice.  It is known as accelerated possession because the procedure is designed not to require a court hearing and therefore in theory it should be quicker.  However, landlords should note that the process is by no means immediate. Have a look at our timetable of a typical Section 21 Notice Possession as a guide. It will typically take several weeks or months, depending on whether there is a back log of cases at the specific court being used.

Section 21 notice

The landlord cannot regain possession during the first six months of a assured shorthold tenancy.  For periods exceeding 6 months, before starting proceedings, the landlord must serve a termination notice under Section 21 of the Housing Act (1988) (known as a Section 21 Notice) which must be served in writing at least 2 months before possession is required. We provide a copy of a free Section 21 Notice.

A Section 21 Notice:

  • Has to be in writing
  • Does not have to be in a set form
  • There is not normally a hearing
  • This procedure cannot be used if the landlord has changed during the tenancy term or if there was no written tenancy agreement in place when the tenant moved in
  • Is not available for rent act tenancies (regulated tenancies)

Serving the section  21 notice

If the tenancy was for a fixed term, the date specified cannot be any earlier that the expiry date of that fixed term (for a copy of a section 21 fixed term notice register to use our free property management software )

If the tenancy was periodic or the fixed term has expired before the notice is given, the date specified must be the last day of a rental period.  Therefore if the tenancy is a monthly tenancy and the rental day is the 15th of the month, the date specified must be the 14th of a subsequent month at least 2 months after the date of service.

The two month notice period is a minimum – it can be more than two months and still be valid.  For example, if a six month tenancy was granted there would be nothing legally wrong with the landlord serving the Section 21 notice on or soon after the grant of the tenancy, to take effect at the expiry of the tenancy.

If the notice has been correctly served during the fixed term and the tenant does not move out at the end of it, the landlord may start possession proceedings immediately without having to serve any further notices.

Grounds for non fault based possession

In the case of an assured shorthold tenancy the landlord simply needs to show that the tenancy has ended and that the Section 21 notice has been served and has expired.  He does not need any grounds for possession, being entitled to a possession order as of right.

The landlord does not have to show it is reasonable to grant possession.  Once the correct Section 21 notice has been served and the court is satisfied that the tenancy is an assured shorthold, it must grant an order for possession.

Can I serve a section 21 notice at the start of a tenancy?

One of the tips I was given from a professional letting agent was to serve a section 21 notice at the start of a tenancy.  It is a trick used by many experienced landlords but how legal is it?

Let's be clear there are advantages to a landlord of serving a section 21 notice at the start of a tenancy.  The section 21(1)(b) is for fixed term tenancies and should be dated to give at least 2 months notice to the tenant and not expire before the end of the fixed term tenancy.  Prior to the clarification of the law by the Court of Appeal in the case Spencer v Taylor the previous interpretation of section 21 of the Housing Act 1988 was that the notice had to be dated so that it expired on the last day of the tenancy period.  This caused much confusion with landlords and meant that many of these fixed term notices were 'kicked out' by the courts as being invalid.  Thanks to the clarification by the courts this obstacle to a landlord gaining possession has been made a little less onerous.  For detailed guidance on dating your section 21 notices  have a look at this article.

Are there still advantages to a landlord of serving a section 21 at the start of a tenancy?

Despite the fact that it has been made easier to date a landlords section 21 notice there are still advantages to a landlord to serving the notice at the outset of the tenancy.  For a start it is easier for a landlord to get the tenant to sign to acknowledge receipt of the notice. This proof of service of the section 21 notice can often be as much as a problem for a landlord with the courts than getting the dates wrong.  Most tenants who are looking to avoiding eviction because they are in arrears with their rent will look at prolonging the eviction process and if they can avoid it through a legal technicality that the notice was not legally served they will do.  However, at the start of a tenancy most tenants apart from perhaps hard nosed professional scammers will sign anything including an innocuous section 21 notice which can be explained away to the tenant as just ensuring that they can end the tenancy after the fixed term of say 6 month if they so wished.

A landlord needs to ensure that they can prove the tenancy has started

Legally serving a section 21(1)(b) Notice cannot be served until after the tenancy has been started.  One of the difficulties of serving the section 21 notice at the start of a tenancy is that it is difficult for a landlord to establish that the section notice has been started after the tenancy has began. The Housing Act 1988 section 21 states clearly that "a s.21(1)(b) Notice cannot be served until after the letting starts".

In the opinion of Jeffrey Shaw the legal expert on our landlord forum should the tenant challenge the notice and it end up with a legal hearing then the Judge may be unclear that the section 21 notice was served after the tenancy was created.

In reality this kind of legal challenge is unlikely.  Landlords should probably take the view that the administrative simplicity and legal advantages of serving the free section 21 notice giving them the opportunity of starting proceedings for possession immediately after the expiry of the end of the fixed term tenancy out way any potential risk of the possession proceedings failings because of the unlikely event of a legal challenge.

Accelerated possession proceedings

These are commenced in the county court for the area where the property is situated.

The landlord will then need to use N5B possession. The N5B claim form is available from the Governments Justice website.

The most important form is the ‘Claim form for possession of property (accelerated procedure) (assured shorthold, tenancy) N5B.

The claimant is the landlord and the landlord should fill in their name and address.  The defendant’s  (tenant’s) name(s) and address (the tenanted property) should also be inserted.  The amount of the court fee should be checked at the court office and paid by the landlord in order that the action can commence.

The application is supported by a witness statement, printed on the inside pages of the application form.

The landlord (claimant) will also need to supply:

  • A copy of the tenancy agreement (the first written tenancy agreement & if there is more than one agreement the most recent)
  • The Section 20 Notice stating that the tenancy would be an assured shorthold if the tenancy began before 28th February 1997 (not required if the tenancy began after that date)
  • In all cases, the notice requiring possession served under Section 21 of the Housing Act 1988.
  • If the landlord did not serve the notice then whoever did so has to complete a CERTIFICATE OF SERVICE (County Court Form N215)


It is most important that the form and the witness statement are properly completed otherwise the court is likely to reject the application.  The completed form and statement plus a copy for each defendant must be filed at court along with the court fee.  The court will serve the papers on the tenant (s) by post and will notify the landlord that this has been done in the document entitled NOTICE OF ISSUE.  This tells landlords when the items were posted and the date up to which the tenant can file a defence.

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The papers served on the tenant include a form of reply to enable the tenant to lodge an objection to the landlord’s application, should the tenant wish to do so and the grounds of their objection.  This must be done within 14 days of service.

The only valid defences by the tenant are that there is a defect in the section 21 Notice or that the tenant did not receive the section 21 notice.

Once the 14 days have expired the landlord completes the bottom part of the NOTICE OF ISSUE and asks for a Possession Order.

The matter is then referred to a district judge, who looks at the papers and the reply (if any) and decides whether possession should be ordered at this stage or the matter should be referred for a hearing.  The procedure is designed to avoid the need for a hearing, so the judge will normally call for one only if the landlord’s paperwork is not in order or the tenant has raised an issue that ought to be heard.

If the Judge is satisfied that the Section 21 Notice is correct and that it has been served then he will make a Possession Order without a hearing.  That normally gives the tenant 14 or 28 days to vacate.  If that time will cause the tenant hardship the judge has power to extend the time to 42 days but no longer.

If the tenant then does not go the landlord will have to instruct the Baliff using Court Form N325 and pay £110

Landlords should note that the use of a Section 21 Notice is purely to obtain possession of a landlord residential investment property it cannot be used to reclaim unpaid rent.  A landlord that are looking to reclaim unpaid rent will either need to take a separate action through the small claims court or should start an ordinary Fault Based Possession under Section 8.

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Comments (21)

Serving Sec 21 on commencement of a Tenancy
If a Sec 21 Really is wanted to be served at a start of a tenancy, then the Tenants signature on the AST should be signed and 'TIMED ', ideally being witnessed by someone other than the Landlord ( any witness will do, could be landlords spouse )
Then, perhaps after a tour of the property, etc, the Sec 21 can be served with this Also being TIMED and witnessed.
Personally, I prefer Not to issue a Sec 21 at the commencment of a tenancy as a landlord uses most of his ammunition before any battle has commenced [ figurqtively speaking, of course ]
The best and sure way to serve a Sec 21 is by a First class stapm, with a Certificate of Posting..
#1 - Chris Daniel - 01/16/2015 - 23:39
Section 21 dates
I have issued a section 21 and am worried I have the wrong date.
Tenancy start date: 18th may 2013
I issued the section 21 on the 23rd jan 2015 stating I require possession after 18th April 2015.
I think I should have put the 17th of April not the 18th.
I did include a sentence after this stating “or at the end of the period of your tenancy which will end after the expiry of two months from the service upon you of this notice”

Will this cause an issue when the tennant tries to dispute it, as I know he will. Do I need to issue a new section 21?
#2 - Lin - 01/26/2015 - 23:46
Section 21 valid Date
Re above, you are right, the 17th of April is the corret date. You could still proceed relying on a stated case of Spencer v Taylor, however this is a relatively new and little known case at present and to be honest, I wouldn't have a lot of confidence that every County court judge is aware of it. Many have been known to 'phone a friend' during adjournments into various areas of Civil law that they may not be a specialist in.
So, take your chances, or if you want to be bullet-proof, re-serve the sec 21, knowing that you will get possesion and your court fee won't be wasted.
#3 - Chris Daniel - 02/02/2015 - 16:38
Getict a inviction to notify a Tenent
Dear Sir/Madam
Please send me a fort 21 Act to notyfy my Tenent to live my Property.
If ther is nead to be pay any fee please let me now
Thanks
Rosa Pereira
#4 - Rosa Pereira - 02/20/2015 - 13:48
address on the section21
My letting agent got the section 21 signed at the start of the tenancy. The agent used my name with C/o of agent address.

The tenancy agreement has my home address .

Would this difference in address make it invalid?
#5 - gus - 02/25/2015 - 18:14
Owner Occupier Letting
I lived in my house for seven years and was then asked by a charity to do some work for them which provided accommodation. I let my house to a good tenant on 1st May 2014 on an Assured Shorthold Tenancy for 1 year. I put a clause in that there was 2 months notice either side. I didn't know about Section 21 then so no mention in the tenancy agreement. The tenancy agreement runs out at the end of April 2015. I don't need the house back yet, but I want to be able to get it back with two months notice after 30th April. Should I allow the tenancy agreement to lapse into a periodic tenancy and then serve a Section 21 notice whenever I need the property? My tenant is claiming HB and I want them to be able to go to the local authority for assistance when I take my house back. Any advice? Should I do nothing or do I need to write to the tenant and explain the tenancy is now periodic but note the right to take the property back under Section 21? Any advice appreciated. I spend my time helping others but now I need some help myself! Thanks
#6 - Steve Manning - 03/28/2015 - 12:49
AST
I served a section 21 noitce on my tenant on 07-05-2014. Can I now file action or do I have to serve another section 21 notice before i proceed
#7 - SUE - 04/22/2015 - 15:14
AST
I served a section 21 noitce on my tenant on 07-05-2014. Can I now file action or do I have to serve another section 21 notice before i proceed
#8 - SUE - 04/22/2015 - 15:14
Section 21
My landlord has sold the property, but the letting agent has issued is with a section 21 what rights does he have as we have two young kids.
#9 - Vicki - 07/03/2015 - 04:53
Section 21
I received a section 21 in may which is asking me to leave on 14th of July. The property was negotiated between the landlord and the local council(we have been living here for the past 15 17 months now).I Get housing benefit from the council because my husband is the only one working as I look after my 2 kids(boy 2 yrs,girl 6 months). Apparantly the council and the landlord had some disagreement over some money and we are the ones suffering. We have always paid our part of the rent on time through direct debit and have been told my the landlords agent that we are very good tenants as weve never complained ever and always kept the house clean but the landlord also said that hes sorry that we are suffering for no reason. I really dont want to leave this property as this is our home now and holds a sentimental value for our family. Can I please get any piece of advice from someone as to what I should do? Please
#10 - S A - 07/11/2015 - 03:15
incorrect section 21
I have recently had a possession order refused as I calculated the expirary date on the section 21 form incorrectly and so applied to the court to soon. Do I need to serve a new section 21 and wait another 2 months or can I now re apply as the date on which it would have expired has now passed?
On the section 21 form I put the expiary date was the 13th of july but the judge has said it expired on the 3rd of august
#11 - Matthew Tame - 08/17/2015 - 20:33
Court order for reprocession of property
Please could anyone give me an idea of how long the courts take to issue a reprocession order for property. I went through the accelerated reprocession route and section 21 was served by me on tenants then the court sent out the forms to tenants, I filed the forms forms a reprocession order after the 14 days were up, but have heard nothing from the court since. Wondering how long I can expect to wait
#12 - David - 08/31/2015 - 08:43
what is the next stage after section 21 is issued?
i have just been issued with a section 21 notice for repossesion, please what will happens after the expiry of this notice?
#13 - thomas - 01/09/2016 - 03:01
Court ruled possession order out of court - dismissed dec 15
Because the section 21 was served with eviction date during the 6 month period - so not valid.

Can the same section 21 be used to for a second defence form (accelerated) n11b to be served on the tenant without serving another section 21?
#14 - H rice - 03/07/2016 - 10:28
#13 Thomas
Hi Thomes,
After Expiry of Secation 21 notice, you need fill form (N5B) Accelerated. you can download from internet.
#15 - Jay - 05/12/2016 - 13:02
#13 Thomas
Hi Thomes,
After Expiry of Secation 21 notice, you need fill form (N5B) Accelerated. you can download from internet.
#16 - Jay - 05/12/2016 - 13:03
#12 David
Hi David,
Could you please let me know your update. I am in same stuation. I need to know how long will take after you appley for request for procession order.

Thank you
#17 - Jay - 05/12/2016 - 13:07
duplicate tenancies
Every time i create a new tenancy it seeems to set up two new ones, Never used to do this but been happening for a while.
#18 - Ian - 09/20/2016 - 14:32
Can I ( landlord) end a fixed term tenancy
Can I ( the landlord ) end a fixed term tenancy agreement as I need to move in the property my self ?
Thanks Paul
#19 - Paul Morris - 11/17/2016 - 20:21
Evicting a tenant
Could someone please help advise me on how to proceed to getting a court hearing.

I have a tenant who has been in my flat for four years

They are receiving housing benefit.

When they moved in I did not secure there deposit. But did so about two years later.

The tenancy agreement was renewed for the first 3 or 4 times (each for 6 months), but I have not done so for the past 2 years.

I have served them notice under section 21 to leave in 2 months time.

The alloted time has past and they said they will not go. That Haringey Councitl (from whom they received housing benefict) has advised them they will not find new housing for them unless they provide a court judgement evicting them.

My questions are

1. Will the expired agreement and the fact that I did not lodge the deposit for two years affect my ability to get a court judgement.

2. Is there any way for me to file with the court online myself. The online eviction agencies are all asking for over £450 which is a lot of money given the rent being paid.
#20 - A. O. Fami - 11/28/2016 - 11:47
How can I get a court hearing
Could someone please help advise me on how to proceed to getting a court hearing.

I have a tenant who has been in my flat for four years

They are receiving housing benefit.

When they moved in I did not secure there deposit. But did so about two years later.

The tenancy agreement was renewed for the first 3 or 4 times (each for 6 months), but I have not done so for the past 2 years.

I have served them notice under section 21 to leave in 2 months time.

The alloted time has past and they said they will not go. That Haringey Councitl (from whom they received housing benefict) has advised them they will not find new housing for them unless they provide a court judgement evicting them.

My questions are

1. Will the expired agreement and the fact that I did not lodge the deposit for two years affect my ability to get a court judgement.

2. Is there any way for me to file with the court online myself. The online eviction agencies are all asking for over £450 which is a lot of money given the rent being paid.
#21 - A. O. Fami - 11/28/2016 - 11:50
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