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Section 21 Notice - Possession

Apart from the initial creation of a tenancy using a tenancy agreement  the other most widely used form on our website is our free Section 21 Notice for possession.

Property Hawk tries to de-mystify the process of seeking possession using a Section 21 Notice.

What is 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.

When is a Section 21 Notice valid?

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.

If you are unable to use a Section 21, see the Section 8 Notice for possession. We also provide users with a free Section 8 Notice form.
   

When can I serve a Section 21 Notice?

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.

What notice period do I need to give my tenants?

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.

Which Section 21 Notice do I need?

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.

Section 21 Notice dates

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.

Serving the Section 21 Notice

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.

Will I get my rent back and any money owed if successful?

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.

How should I serve a Section 21 Notice?

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.

Use our free landlord software to create free Section 21 Notices.

 



Comments (7)

section 21 b
I issued a sec 21 b to tenants. They are via a council scheme called housing options. The tenants had a 6 mnt agreement on a bond scheme and this ran out on 1st october. We do not want to renew agreement as tenants are causing noise problems in neighbourhood. The Bond from council runs out 1st oct, I issued sec 21 b 7.9.12 asking for tenant to vacate property by 8.1.12. I thought this was the required 60 days and a little more. However, the housing options are saying out dates are wrong. pls advise. Many Thanks Kully
#1 - Kully - 10/04/2012 - 18:31
Serving a Section 21 (a) b
Does a section 21 (A) b need to be signed if issued by a private landlord. It was dated but not signed by me personally. The tenant is suggesting that it needs to be signed.
#2 - esther Hutchinson - 10/22/2012 - 16:56
s21
2s1 dated 20.8.2012 DATE OF EXPIRY 4.11.2012 BUT I HAND DELIVERED S21 ON THE 31.8.2012 IS IT STILL OK
#3 - michael - 01/03/2013 - 19:33
section 21
My landlord given me 2 months notice under sec21 (1) requires possession.
I gave him counter serve notice as I want to leave 2 weeks earlier. He doesn't want to agree. Does he have a right to refuse?
#4 - ana - 05/13/2013 - 23:30
S 21 Notice
I was sent an accelerated procedure claim form. My landlord says that he served me a S21N BUT in fact, he and his wife are divorcing and one says one thing another says something else. I have never received any notice in writing, although the landlord told me informally that he wanted the flat back because his wife wanted to live in that flat. He asked me when I could leave. I asked, can I stay up to Christmas? He said, no. So I asked to stay up to my children's school break, he said ok. Then I started to look for property. Then, his wife came along and told me that she did not want to live in that flat and in fact she was going to India and that I could stay in the flat as I am a good tenant, etc. I relieved as I like the flat. About 3 weeks ago the landlord come along and asked me when I was leaving. Surprised, I told him about what his wife said and told him that as soon as I find somewhere suitable for me and my children and would let him know and asked him to send me a letter given me notice. Next, now I received the claim form. How can I prove that I was not given S21 Notice?
Thanks
#5 - REGINA - 08/16/2013 - 10:15
Section 21
My landlord given me 2 months notice under sec21 (1) requires possession.
I gave him counter serve notice as I want to leave 1 month earlier. He doesn't want to agree. Does he have a right to refuse?
#6 - Stephan - 12/12/2013 - 11:48
Section 21 Dates
I was issued with a section 21 while my deposit nad not been protected.It was dated the 11th. I have since been returned ny deposit and issued another section 21 dated 18th. The section 21 has now gone to court and i have recieved all the information. They have however used the sec 21 dated the 11th and not the one that i have recently been sent, dated the 18th. What happens now, Thanks
#7 - James Tanner - 02/06/2014 - 12:52
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