If you need a solicitor to assist in providing advice on and serving a ‘section 21’ notice we can help for a fixed cost.

Any landlord can use the procedure in section 21 of the Housing Act 1988 to terminate an Assured Shorthold Tenancy after the fixed term (usually 6 or 12 months) has expired.

What are the advantages of the Section 21 notice procedure?

The advantage of a section 21 notice is that you do not need to make out or rely on any of the grounds for possession based on the default by the tenant (which are only relevant to the procedure under section 8 of the Housing Act 1988 (although we can advise on these when instructed as they may provide an alternative route to obtaining vacant possession back of your rental).

When carried out correctly the procedure set out in section 21 of the Housing Act 1988 allows the landlord to regain possession of the rental property without a court hearing. However, this is not that straightforward because certain criteria must apply and you need to ensure with the growing list of requirements which may restrict the ability to serve a notice.

On the assumption you meet the criteria you can use the “accelerated possession procedure”. As noted this obtains an order for possession even if there is no default by the tenant and without a hearing so in theory this is potentially a faster method of getting your rental back.

Why would I need a section 21 Notice to be served?

In most lettings the tenant or the landlord can mutually agree to the termination of the tenancy without this procedure being invoked. However, we typically see a few scenarios where this is required. It is important to note that you should not attempt to remove your tenant by DIY methods – e.g. changing the locks or harassing them to move – because this is likely to be illegal and will open you up to a punitive damages.

Many landlords as lawyers to serve a section 21 notice in the following circumstances:

1. As an alterative to pursuing a fault eviction ( under section 8 of the Housing Act ) e.g. when the tenant is in arrears of rent or is persistently late in paying rent – this can sometimes be the quickest way of removing the tenant and avoids some of the uncertainties which may arise in proving a section 8 ground.
2. When the tenant has been “advised” by a third party particularly a local authority not to vacate the property without a court order as they will be seen as intentionally homeless and not eligible for rehousing by the council. This can often happen when a tenant loses their job or become unable to work through sickness.
3. When the landlord is selling to assist in ensuring the tenant does vacant to facilitate the sale when vacant possession is to be given under the sale contract.
4. When they got it wrong the first time around. As noted below the procedure can be complex and a defect in the drafting of the notice or a failure to consider the statutory rules or case law may well mean the notice is invalid and will need reserving – often many months after the first notice was served. In this time, substantial arrears of rent may have also built up.

When can get possession back?

The Court is only going to order possession on or after the end of the fixed term Assured Shorthold Tenancy (AST). An AST must be for a minimum of 6 months in any event but often such tenancies are entered into for say 12 or 24 months.

This means that this method may not be suitable to bring to an end a 12 month tenancy where there are arrears but only 4 months have run but the specific facts of each matter would need to be considered.

In addition the Court would need to be satisfied that:

1. The Assured Shorthold Tenant has ended (and no further AST exists other than a periodic tenancy – typically a fixed term tenancy which has expired will roll into a statutory periodic tenancy under section 5(2) of the HA 1988 which usually rolls from month to month); and
2. the landlord has given the tenant at least the required minimum number of months’ written notice that the landlord requires possession of the property. This minimum period is two months’ written notice for most ASTs in the private rented sector.

Service of a section 21 notice

A notice under section 21 of the Housing Act 1988:

1. Can expire on any day – you can include weekends etc;
2. Can be served before the tenancy expires, to take effect on the date the tenancy expires – useful if you want to get a problem tenant out without using the section 8 proceedure.
3. Although there is no minimum fixed term, no order for possession will take effect earlier than six months after the beginning of the original tenancy.
4. Does not have to specify any grounds for possession.

However, the rules are a little more complex and a section 21 notice:

1. Must be in a prescribed form.
2. Cannot be served within four months of the day on which the tenancy began.
3. It will only be valid for six months from the date on which the notice is given.
4. Cannot be served where the landlord is prevented from retaliatory eviction under section 33 of the Deregulation Act 2015.
5. Can only be served where the landlord has complied with the legal requirements relating to providing an EPC, a gas safety certificate and the prescribed information about the rights and responsibilities of the landlord and tenant under the AST set out in How to rent: The checklist for renting in England.

In relation to this last point there are complex rules and case decisions surrounding these requirements and we can guide you through this and advise what steps, if any, would need to be regularised before serving the notice.

How to serve the notice (post or personal service or otherwise) can also be crucial to the final outcome. This can be a complex area as illustrated by a recent case on postal service and the deemed service provisions.

Key problems following a failure to comply with the legal requirements

There are as noted in effect restrictions on serving a section 21 notice that may apply where the landlord has not complied with various statutory requirements.

It is important that they are not ignored because of course if the section 21 notice is invalid then the Court will not grant possession under the accelerated possession procedure and it may be at that point you will need to start again, potentially wasting many months in initially waiting for the notice to expire and then in the preparation for the Court proceedings.

Key problem areas include:

• Service of the notice. This may not be as simple as it appears – see Deemed service provisions when interpreting s.21(1)(b) of the Housing Act 1988
• Compliance with certain legal obligations relating, for instance, to Gas Safety certificates and Energy Performance Certificates (EPCs).
• The strict requirement to join a Tenancy Deposit Scheme (TDS) when a tenancy deposit is paid and providing prescribed information to the tenant within the strict time limits.
• Providing the tenant with certain prescribed information relating to the rights and responsibilities of the landlord and the tenant under an AST.
• Compliance with the Tenant Fees Act 2019.

In may be in may circumstances missing information/compliance can be dealt with “late” i.e. before serving the section 21 notice but even then legal guidance on the specific circumstances may well be required e.g. where the “How to rent” checklist is served late, should you serve the version current at the date of service or the version current at the date the tenancy was entered into (our advice is to serve both).

There are some particularly difficult decisions relation to the provision of a gas safety certificate, if missed originally, prior to serving the section 21 notice.

Much of this is fact specific and we can advise if we are engaged in this process.

How can we help?

Please contact Adem Esen at Kenneth Elliott and Rowe Solicitors for further advice and assitance.

Adem is a  Solicitor (with Higher-Courts Civil Proceedings rights) and is experienced in dealing with the service of section 21 notices and accelerated possession proceedings in England.

email: adem.esen@ker.co.uk or call Adem on 01708 707851.