Section 21 notices
If a landlord and tenant have entered into an assured shorthold tenancy, the landlord may recover possession of the property from the tenant at any time after the end of the fixed term using the notice procedure set out in section 21 of the Housing Act 1988. This is known as serving a section 21 notice.
Section 21 notices can only be served on assured shorthold tenants. They cannot be validly served on assured tenants.
If a landlord and tenant have entered into an assured shorthold tenancy, the landlord may recover possession of the property from the tenant at any time after the end of the fixed term using the notice procedure set out in section 21 of the Housing Act 1988. This is known as serving a section 21 notice.
Section 21 notices can only be served on assured shorthold tenants. They cannot be validly served on assured tenants.
A section 21 notice is by far the easiest course of action to use if the landlord wishes to gain possession for any reason, be it rent arrears or disruptive/antisocial behaviour, or simply because he wants the property back for his own use. There is no need to mention in the court papers the real reason why the landlord is seeking possession and no need to prove that the tenant has breached any grounds for possession.
The requirements for an order for possession under section 21 are:
- that the tenancy is an assured short-hold tenancy
- that any fixed term of the tenancy has expired
- that a notice properly drafted in accordance with the provisions of section 21 has been served on the tenant,
- that the proper notice period was given to the tenant and has expired at the time proceedings are issued,
- if a deposit has been taken, it has been validly protected by an authorised scheme and the relevant Prescribed Information served, and
- for tenancies that began on or after 1st October 2015 in England, the prescribed information as required by the Deregulation Act 2015 has been served.
A landlord cannot use a section 21 notice if he is seeking possession of a licensable HMO, or part of that HMO, if it is not licensed (or subject to a Temporary Exemption Notice) when the case comes to court. If he can prove that he has applied for a licence and is waiting for the local authority to decide whether or not to grant one the court may grant possession.
Under changes to the Tenancy Deposit legislation that came into force in April 2012, if the landlord fails to comply with the legislation within the given time period, he will lose the right to serve a Section 21 Notice unless the deposit has been returned in full or following the tenant’s claim being decided, withdrawn or settled (by a court). This means that, a s21 notice is unenforceable if the deposit is not protected within 30 days AND the notice with prescribed information is served on the tenant and this can not be corrected by protecting and serving after the 30 days, as it could before.
***Further changes to Section 21 notices have been introduced that affect all new tenancies created on or after 1st October 2015.***
The Deregulation Act 2015 introduced several changes to the way Section 21 notices can be used. These changes do not affect tenancies that commenced before 1st October 2015.
If a landlord receives in writing a complaint from his tenant about the condition of the property and either did not respond within 14 days, or provided a response that was not adequate or gave a Section 21 notice and the tenant goes on to complain to the Local Authority, any Section 21 he serves on the tenant (even before the Local Authority issue a notice) will be invalid.
Adequate response by the landlord must be in writing and provide a description of the action that the landlord proposes to take AND sets out a reasonable timescale for that action to be taken. There are two exceptions to this rule and that is if the property is genuinely on the market for sale OR the poor condition of the property has been caused by the tenant.
The Act has done away with the requirement to tie the expiry date of a Section 21 notice to an end of a period of the tenancy. However, you should make sure that your tenancy agreement reflects this. A Section 21 can now be served with a straight 2 months notice, assuming it will not expire sooner than the end of the fixed term and of course allowing time for service. The Act prescribes a formula for working out rent on a daily basis if your notice does not expire on an end of a period of the tenancy, rent x number of days divided by period.
The Act introduces time limits now for Section 21 notices. They cannot be served within the first 4 months of a tenancy and landlords will only have 6 months from the time the notice was issued to the time they commence court proceedings.
The Act also requires that certain prescribed information is provided to tenants before a valid Section 21 notice can be served. In addition to the Prescribed Information in relation to the deposit, landlords must also give tenants a copy of the EPC (Energy Performance Certificate), Gas Safety Certificate (if applicable) and a copy of the Governments booklet entitled ‘How to Rent’. A link to this booklet is in the Additional Resources at the end of this chapter. The easiest way to obtain proof of service of these documents is to detail them in the tenancy agreement. Alternatively, if the tenant agrees, these documents can be served on them by email. Again, it is best to get thi in the tenancy agreement and to retain a copy of the email as proof of service.
Lastly, the Act requires landlords to use a prescribed form for Section 21 known as Form 6A. This will be available shortly on our website, alternatively a link to the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 is in the Additional Resources at the end of this chapter.