Property Hawk tries to de-mystify the process of seeking possession using a Section 21 Notice.
Under the Housing Act 1988, a landlord who has granted an assured shorthold tenancy has a legal right to get his property back at the end of the tenancy. In order to invoke this right, the landlord is required to follow the correct legal procedure which includes service of a notice (under Section 21 of the Housing Act 1988) on their tenant. Section 21 is divided into subsections with different rules applying to notice served during the fixed term of a tenancy and notice for possession that is served during a periodic tenancy.
A landlord needs a signed Assured Shorthold Tenancy agreement (AST). If a landlord renewed or issued the tenancy agreement after the 6th April 2007 any tenancy deposit taken must have been protected under one of the approved Tenancy Deposit Schemes and the tenant notified where the deposit held prior to the Section 21 Notice being served. If an House in Multiple Occupation (HMO) the landlord must have a licence.
A landlord can actually serve the Section 21 Notice (Notice Requiring Possession) at any time during the tenancy. This means that you could get the tenant to sign the Section 21 Notice at the start of the tenancy, just after the tenancy was created. In this case it’s probably worth getting the tenant to sign an acknowledgement that the Section 21 Notice was signed after the tenancy was created. You know what lawyers are like. The advantage of this for a landlord is it provides an automatic right of possession at the end of the fixed term tenancy, should you want to get rid of your tenant. If they are OK then you can just ignore the Section 21 Notice and either create a new fixed term tenancy or let the tenancy run on and become a statutory periodic tenancy.
Section 21 of the Housing Act 1988 requires that the landlord provides tenants of an Assured Shorthold Tenancy (AST) with a minimum of two months' notice in writing that he/she wants possession of the property. Extra days should be added if the notice is to be sent by post as the two months starts when the tenant receives the notice. See the section below on serving the Section 21 Notice.
The notice must be served before possession action can be started. In the case of joint landlords the notice can be given by any one of them. Possession under this section cannot take place during the initial six months of the original tenancy.
There are 2 Section 21 Notices. The first is a Fixed Term Notice or s 21 (1) (b) which should be served at any time during a fixed term tenancy. The other Section 21 Notice the Section 21 Notice is the S.21 (4) (a) applies to tenancies that are periodic.
This is the vital bit and one which many landlords get wrong resulting in them having to serve the Section 21 Notice again. In fact the Chairman of the London Association of District Judges recently commented that 7 out of 10 of Section 21 Notices are being thrown out of court because they are wrong.
Remember landlords need to give a minimum of 2 months notice and this should allow 3 days for the tenant to receive the notice by post if the Section 21 Notice is posted.
When it comes to comes to Notices month means Calendar Month in tenancy agreements (Law of Property Act 1925 s61 (a). Tenancy agreements run from a day in one month to the day (date) before in another month. For example, a six month tenancy signed on the 5th March (5th day of March) will end on the 4th day of September, AFTER which day a landlord will seek possession.
If the tenancy was for a fixed term, the date specified cannot be any earlier than the expiry date of that fixed term. For example a six month tenancy commencing on 1st May, ending 31st October will seek possession after 31st October providing there is a full 2 months notice given (allowing 3 days for postage if the notice is being posted).
If this notice is given within the fixed term but the full 2 month period runs outside the fixed term a landlord just needs to give a full 2 months notice. It is always a good idea to give a notice date AFTER which possession is sought but technically this is not necessary.
If the tenancy was periodic or the fixed term has expired (statutory periodic tenancy) 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 Section 21 Process is a claim for possession only. If the tenant is in rent arrears or has caused damage to your rental property you are still entitled to sue the tenants, but you will have to take a separate course of action, read this to find out how a landlord can get back money owed by a tenant.
A Section 21 Notice may be served by post or in person. The courts will recognise the day of postal service as the day on which the letter would normally have arrived. Sending the Section 21 Notice by mail is an acceptable method. A landlord should allow 3 working days for delivery and use recorded delivery or proof of postage. This means the Post Office will give receipt of postage and the address to which it is sent. Recorded delivery can cause problems if the tenant refuses to sign and the Section 21 Notice is returned.
Therefore the ideal method of service is by hand directly to your tenant; alternatively the notice can be served at the property through the letter box. In both cases the landlord should have a witness who completes a witness form confirming this.
The burden of proof that the Section 21 Notice was served falls upon the landlord and direct service by the landlord is always preferable. Read more on the best ways to serve notices.