We all know that as of October 2015 new legislation came in to force for Section 21 notices’ We have put together a guide that hopefully helps simplify the process.
What is a Section 21 Notice seeking possession?
A Section 21 Notice is used when a Landlord requires the Tenant to vacate a rented property by a specified date. It must be used to legally terminate an Assured Shorthold Tenancy (AST).
NOTE – As of 1st October 2015 a Section 21 Notice in England will become a prescribed form and you must use the correct form for it to be valid.
A ‘Section 21 Notice of Possession’ operates under section 21 of the Housing Act 1988, is the legal eviction notice template notice a landlord can give to a tenant to regain possession of a property at the end of an Assured Shorthold Tenancy (AST). The landlord is able to issue the tenant with a section 21 notice without giving any reason for ending the tenancy agreement.
A landlord has the legal right to retain possession at the end of a tenancy but must follow the correct legal procedure, which includes serving a section 21 notice. The Housing Act 1996 amended the section 21 of the 1988 Act by requiring this notice to be given in writing.
Section 21 of the Housing Act 1988 is divided into subsections with different procedures to be followed depending on whether the Section 21 notice is served before the fixed term has come to an end or after, when the tenancy has become a periodic tenancy.
When can a Section 21 notice be issued?
Under section 21 of the Housing Act 1988 as amended by the Housing Act 1996, a landlord has a legal right to get his property back at the end of an assured shorthold tenancy.
In order to invoke this right, he is required to follow the correct legal procedure which involves serving a section 21 notice to quit on the tenant or tenants. A section 21 notice can be issued at any time during the fixed tenancy or during the periodic tenancy.
A Section 21 notice to quit can only be used to regain possession of a property at the end of an assured shorthold tenancy. If a landlord wishes to regain possession before the end of the agreed term, this may be possible if he can show certain conditions have been met. In order to do this he must first issue the tenant with a valid section 8 notice to quit.
How do you serve a Section 21 notice during the fixed term of the tenancy?
Section 21 of the Housing Act 1988 as amended by the Housing Act 1996 requires that the landlord provides tenants of an Assured Shorthold Tenancy (AST) with a minimum of two months’ notice in writing, stating that possession of the property is sought. The two months starts when the tenant receives the notice not when the notice was written/posted.
A Section 21 notice must be served before possession order will be issued by a court. Possession under this section of the Housing Act 1988 cannot take place during the fixed term of the tenancy, but the notice can be served at any time during the fixed term provided the tenant is given a minimum of two months’ notice. The tenant is not required to give up possession of a property until a minimum of two months after the Section 21 notice to quit was served. This includes Section 21 notices served up until the last day of the fixed term.
The provisions in section 21(1)(b) applying to fixed term tenancies state:
“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 1 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-
- 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 a statutory periodic tenancy
- 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 stating that he requires possession of the dwelling-house.”
A notice can be issued more than two months before the end of a tenancy but it should not be dated to expire on or before the last day of the tenancy. For example, if a Section 21 notice was issued four months before the tenancy was due to end, the notice would have to be dated after the last day of the fixed term.
If a section 21 notice is issued during the initial fixed term of a tenancy to regain possession at the end of the fixed term tenancy, then should the landlord decide to grant another fixed term, a new section 21 notice would be required to regain possession.
Section 21 notices served during a periodic tenancy
Once the fixed term of the tenancy ends, unless a new fixed term is agreed upon a tenancy automatically becomes what is called a statutory periodic tenancy which rolls from week to week or month to month depending on how often rent is paid.
The procedure for serving notice under section 21 of the Housing Act 1988 is slightly different in the case of statutory periodic tenancies.
Section 21(4)(a) of the Housing Act 1988 applies to assured shorthold tenancies that have become periodic and states:
“Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied-
- That the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section
- That the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under point one above”
A Section 21 notice complying with the above section should only be given to a tenant whose tenancy has become a periodic tenancy as a result of the fixed term ending. In these cases, a minimum of two months’ notice is required and the day on which the notice expires must be the last day of a period of the tenancy.
The period of a tenancy depends on how often the rent is paid. If rent is paid monthly the period of the tenancy is one month, if the rent is paid weekly the period of tenancy is one week and so forth. The periodic tenancy begins immediately after the fixed term expires, so if the fixed term expires on the 10th then the period of the tenancy begins on the 11th, so provided rent was paid monthly the last day of each period of tenancy would be the10th of each month. Therefore the Section 21 notice would have to expire on the 10th of a month and be served a minimum of two months before the tenth of that month.
If the tenant does not leave by the expiry date on the notice the landlord will need to apply to the court for a possession order. Provided the correct procedure has been followed by the landlord issuing the Section 21 notice, the court will have no choice but to grant the possession order.
After the court has issued the tenant with the notice to leave, if they have still not left within the required period, then a landlord can ask county court bailiffs to evict the tenant.
This is a mandatory document for any landlord wishing to regain possession or agree a new tenancy and must be completed correctly in the ‘precribed legal form’ to be valid. We caution you against using a free one that could be out of date because the law has changed recently.
Regardless of the type of AST your tenant has (Fixed term or Periodic) you will have to service the notice with the following:
- Valid Section 21 notice within the rules stated above
- Valid EPC
- Valid Gas Safety Certificate (if applicable)
- Goverment How to Rent Guide
If you have any questions about Section 21 notices or any other section notices please contact your local Belvoir Office for further information.