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.
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.