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.
The first thing to be aware of is filling in a Section 21 Notice is a doddle so don't panic. A Section 21 Notice comprises of no more than a couple of sheets of A4 and in essence comprises of 4 bits of information:
The whole process of completing a free Section 21 Notice has been made much simpler as a result of the changes to the legislation relating to tenancies post 1st October 2015 the new Section 21 Notice should make things more straightforward. However, the politicians don't make it easy so having altered the legislation so that no longer should a landlord not get possession on the basis that they have got their dates confused and that the date possession was at the end of the rental period.
However, the politicians don't make it easy so having altered the legislation so that no longer should a landlord not get possession on the basis that they have got their dates wrong they have now confused the issue by introducing an entirely new Section 21 Notice along with a whole number of requirements on a landlord in order to make it valid.
Which Section 21 Notice should I use?
The name of the game now is making sure that a landlord selects the correct Section 21 Notice in the first place and then has served the correct forms or has gone through the right procedures to make it valid. The 3 types of Section 21 Notices to be used are:
1. Section 21 (1)(b) – can be used to serve notice whether or not in the fixed term. It can be used for all section 21 notices EXCEPT where the tenancy has been periodic from the start or the tenancy agreement allows a contractual continuation at the end of the tenancy (this will be in a landlords tenancy agreement and will say something like at the end of the fixed term the tenancy will continue as a statutory tenancy; this means that it is contractual because it is in the contract – i.e. the tenancy agreement). It does not have to end at the end of a tenancy period and just needs to be two months taking into account service of the notice – so usually 2 months and a few days.
2. Section 21 (4)(a) – has to be used if always periodic (i.e. no fixed term) or if the tenancy agreement states that the tenancy continues contractually at the end of the fixed term (see above) and has to end at the end of a tenancy period so if the tenancy runs from the 15th of a month the notice must be at least two months and expire on the 14th of the relevant month. As an example if you serve this notice on the 18th of August there has to be at least two months – so October – but then it has to end at the end of the tenancy period so in this case the notice would expire on the 14th November.
3. Section 21 6 (a) is a prescribed form and was introduced as as result of the Assured Shorthold Tenancy Notices and Pescribed Requirements (England) Regulations 2015 . This Section 21 Notice is intended to make the serving of notice for possession easier for landlords by removing the requirement to have the date to be the exactly at the end of a rental period. Now a landlord just needs to give the tenant a full 2 month notice along with 2 days for the tenant to receive the notice if it is being delivered by post. As I mentioned the other things that a landlord needs to have done are:
How do I download a free Section 21 Notice?
It is really easy to download a free Section 21 Notice using Property Hawks free Property Managers software. The good thing is that by signing up for the service you automatically enter in the information that you will need to complete your Free Section 21 Notice. Once you have selected the correct version of the Section 21 Notice you need then all you have to do is download it as a printable PDF which can be printed and then sent or given to the tenant.
This is an example of what the free Section 21 Notice 6(a) available through the Property Manager looks like:
1. To: sam white (Tenant)
2. You are required to leave the below address after ........................................... (1) If you do not leave, your landlord may apply to the court for an order under section 21(1) or (4) of the Housing Act 1988 requiring you to give up possession.
1, building, Nottingham, ng2 (Rental property)
3. If you have a fixed term AST, this notice is only valid for six months from the date of issue. If you have a rolling or periodic tenancy, e.g. you rent the property on a week by week or month by month basis, this notice is only valid for four months from the date of issue.
(1) Landlords should insert a calendar date here. The date should allow for the service period, and in effect be two months plus two days if the notice is served by post, e.g. where a notice is posted first class on 15 December 2015, the earliest a tenant may be required to give up possession is after 17 February 2016. Where landlords are seeking an order of possession on a statutory periodic tenancy under section 21(4) of the Housing Act 1988, the notice period should also not be shorter than the period of the tenancy (up to a maximum of six months), e.g. where there is a quarterly periodic tenancy, the date should be three months from the date of service.
4. Name and address of landlord
To be signed and dated by the landlord or their agent (someone acting for them). If there are joint landlords each landlord or the agent must sign unless one signs on the behalf of the rest with their agreement.
.................................................................. Please specify whether: landlord [..]
Name(s) of signatory/signatories test man
Address(es) of signatory/signatories 5, Nottingham, ng2 5he
Telephone of signatory/signatories
As you can see most of the fields such as tenant name, rental property address are filled in automatically through the software leaving just the date possession is required by and the landlords signature to be put in by hand.
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 a House in Multiple Occupation (HMO) or a selective licensing area then the landlord must have a landlord licence.
Since October the 1st 2015 the government has restricted the use of Section 21 Notices for new tenancies to only being able to be used 4 months after a tenancy has begun. Also, for most tenancies a Section 21 Notice remains valid for 6 months from the date of service.
There are certain circumstances in which the law says that a landlord cannot seek possession
against their tenant using section 21 of the Housing Act 1988, in which case a landlord should
not use this form. These are:
(a) during the first four months of the tenancy (but where the tenancy is a
replacement tenancy, the four month period is calculated by reference to the
start of the original tenancy and not the start of the replacement tenancy –
see section 21(4B) of the Housing Act 1988);
(b) where a property requires a licence but is unlicensed;
(c)where the landlord has not provided the tenant with an energy performance
certificate, gas safety certificate or the Department for Communities and
Local Government’s publication “How to rent: the checklist for renting in
England” (see the Assured Shorthold Tenancy Notices and Prescribed
Requirements (England) Regulations 2015);
(d)where the landlord has not complied with the tenancy deposit protection
(e) where the landlord is prevented from retaliatory eviction under section 33 of
the Deregulation Act 2015.
Retalitory or revenge evictions as it sometimes is known is where a landlord is perceived to have attempted to evict the tenant because they have complained about the condition of their rental property.
The Deregulation Act 2015 introduced new rules for assured shorthold tenancies where a tenant has complained about the repair of their tenanted property and the rights and procedure for a landlord obtaining possession through the use of a Section 21 Notice. To see the full Department for Communities and Local Government Retaliatory Eviction Guidance . In summary what this Guidance says is that a court can refuse to grant a possession order following the issuing of a Section 21 Notice if all these apply:
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 (3) 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).
Section 21 of the Housing Act actually states:
21. Recovery of possession on expiry or termination of assured shorthold tenancy.
(1)Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—
(a)that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than [F1an assured shorthold periodic tenancy (whether statutory or not)]; and
(b)the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice [F2in writing] stating that he requires possession of the dwelling-house.
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.
For tenancies starting after the 1st October 2015 a landlord just needs to give 2 months notice to the tenant using the prescribed Section 21 Notice 6 (a). For tenancies created before this date the following applies:
If the tenancy is still in it’s fixed term then a landlord needs to use the s21(1). This also applies if there is no mention in the tenancy agreement of what happens at the the end of the fixed term (the tenancy automatically becomes a statutory periodic tenancy). However, if the tenancy agreement stipulates that the tenancy becomes a contractural rather than statutory periodic tenancy then a landlord will need to use the section 21 (4) notice. This is the case if the section 21 notice was contractual at the outset.
With regards to notice with the section 21(1) the period has to be just two months. In the case of the section 21 (4) the tenancy has to be at least two months and at the end of a tenancy period.
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.
For those tenancies that started as contractual periodic or became so at the expiry of the fixed term because the tenancy agreement stipulated so 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.
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.
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 landlord is always advised to check their tenancy agreement as this should provide guidance on what is acceptable service of the notice. If there is no term like this in the agreement then they have to serve under s196 Law of Property Act 1925 which only allows for hand delivery or registered post (which we interpret to be recorded) if sent first class (without provision for it in the tenancy agreement) then it is not deemed served.
Generally 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 and therefore it's not advised.
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.
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The information, materials and opinions contained on this website are for general information purposes only, are not intended to constitute specific legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Seatons Solicitors does not accept any responsibility for any loss which may arise from reliance on information or materials published on this website.