Section 21 Notice
A section 21 notice is a notice that is issued by a landlord who would like to take back possession of their property. There are two different types of Section 21 notices. The first are notices which were issued prior to the 01st October 2015 and the second is when the notices were issued after 1st October 2015.
Under the Housing Act 1988, a Section 21 Notice can be issued to the tenant. The landlord may want the property back for a number of reasons which do not relate to non-payment of rent or the conduct of the tenant. If the landlord wishes to claim the property back for these reasons a Section 21 notice is not suitable.
The Section 21 notice can be issued by the landlord and they do not have to provide a reason as to why they would like the tenancy to come to an end.
Prior to October 2015, there were many different types of Section 21 notices and there were no limits on issuing the notice. It was also common practice for a landlord to serve a Section 21(1) notice from the outset of the tenancy. However, when the Deregulation Act was introduced, these rules changed.
Tenancies Before 1st October 2015
Once a fixed term tenancy has elapsed and the tenancy continued on a periodic basis, a Section 21(4) notice could be issued by the landlord to obtain possession of the property.
However, a court case between Spencer v Taylor illustrated that a Section 21(1) notice can be issued in other circumstances. This Section 21 notice can be enforced at any time provided that two months notice is given, and it cannot be issued before the term of the fixed term of the tenancy has passed.
Landlords must ensure that they have provided the tenant with information about the deposit protection schemes when the Section 21 Notice is issued. If landlords fail to do this, they cannot issue the notice.
A Section 21 notice can be issued at any point during the tenancy but the date it comes into effect cannot be earlier than the last day of the fixed term tenancy. If the notice is served after the fixed term tenancy, landlords can issue a more flexible Section 21 (1) notice which states;
- The tenancy began as a fixed term agreement
- The tenancy has run for its fixed term and is now operating on a periodic tenancy
Tenancies after 1st October 2015
On the 1st October 2015 a number of changes were introduced which identified the situations when a landlord can serve a Section 21 Notice in relation to an assured shorthold tenancy. Along with these changes there is also a new application form that landlords will have to complete.
The changes which were introduced combined the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 and the Deregulation Act 2015. The key changes implemented apply to all new shorthold tenancies which commenced after 1st October 2015
The conditions outlined in Section 33 and Section 34 of the Deregulation Act will apply for all new assured shorthold tenancies which began after the 1st October 2015.
- Section 21 Notices can no longer be served within the first four months of a new tenancy
- If proceedings are not instigated within a six month period of the notice being served, the notice is invalidated
New forms were introduced which need to be completed to commence proceedings under Section 21
The failure of a landlord to provide the required information to the tenants during their tenancy can result in an invalidated Section 21 Notice.
If the landlord fails to follow the time limits for the repairs process, this can also invalidate the Section 21 Notice and prevent another notice from being issued for a period of six months.
If you wish to issue a Section 21 Notice you must complete Form 6a which is a notice that you intend to secure possession of a property that you let on an assured shorthold tenancy. If the tenancy was created prior to the 01st October 2015, you do not need to complete the specific form but you must provide the tenant with at least two months notice which must be issued in writing.
If the fixed term of the tenancy has expired, the notice must end on the last day of the fixed term and the landlord must inform the tenant that they are being issued with notice under Section 21 of the 1988 Housing Act. If the rent is paid quarterly, you will need to give the tenant more than two months notice if the fixed term has expired.
If the tenant refuses to leave the property you will have to apply to the court for a possession order.
If possession is sought under Section 21 of the Housing Act 1988, the process can be expedited. This process is both affordable and straightforward to secure possession of your property, and without the requirement to attend court.
In the majority of cases, the court will make its decision and they can instruct that possession of the property is given to the landlord within a period of 14 days unless this will place the tenant in a situation where they face extreme hardship. In this instance, the court can extend the period to 42 days.
Landlords can only turn to this procedure if they have issued a written tenancy agreement and the tenant has been given the required notice that you will be seeking possession of the property. This process cannot be used if you are seeking to retake possession of the property for rent arrears.
Serving a Section 21 Notice
If a landlord would like to serve a tenant with a Section 21 Notice, they can only do so if the tenant has been provided with a Gas Safety Certificate along with a valid Energy Performance Certificate, and a copy of the leaflet entitled ‘How to Rent: The checklist for Renting in England’.
All of this information should be provided when the tenancy begins. Furthermore, if a new gas safety check is carried out during the term of the tenancy, a copy of the landlords certificate should be issued to the tenant.
In addition, for both the old and new notices, deposits need to be adequately protected in accordance with a deposit scheme and information issued to the parties involved. If the property is a House of Multiple Occupancy which requires a licence, these licences should be in place before the notice is served.
A landlord cannot serve a valid Section 21 notice if it is a retaliatory eviction. This can occur when a tenant informs the landlord of a repair that requires attention in the property and the landlord issues a notice of eviction as a response.
In addition, a landlord cannot serve an official Section 21 Notice under the following circumstances;
- When the tenant has issued a written complaint to the landlord about the condition of the property before the notice is served
- If the landlord has not responded to this complaint within a period of 14 days
- The tenant has complained about the same issues to the local authority who have served an improvement notice on the property or they have carried out the remedial work themselves using their own powers. However there can be exceptions to this rule when defects have been caused as a result of tenant misuse of the property.
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