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What is a Section 21 Notice?

A Section 21 Notice is one of the methods a landlord can use to evict a tenant from their property. The tenant won’t have to leave immediately as there is a Notice period. The landlord will need to serve a Section 21 Notice and, if the tenant doesnt leave, to issue a possession claim and obtain an eviction order from the court. A Section 21 Notice can be served alongside a Section 8 Notice, but they follow different protocols. Care needs to be taken to ensure they don’t invalidate one another. Both Notices are governed by the Housing Act 1988.

A tenant who receives a Section 21 Notice can challenge it through the courts, and in particular by defending the possession claim. There may be costs attached to doing so. Challenges can be based on the validity of the Notice and the landlord’s behaviour. A Section 21 Notice doesn’t mean the tenant has done anything wrong. If the landlord seeks possession of the property and the tenant’s eviction, they might want to either live in it, or sell it.

What is a Section 21 Notice?

A Section 21 Notice is a warning to the tenant that they need to vacate the property after a prescribed Notice period. The landlord doesn’t need to give a reason. 

A Section 8 Notice is an alternative to a Section 21 and is commonly used when the tenant has broken the terms of the tenancy agreement. The Section 8 Notice must give a reason or reasons, called ‘grounds for possession’. 

Serving a Section 21 Notice has always been the simpler of the two ways to end a tenancy. It does not usually require a court hearing. There is also a quicker court process available – this is referred to as the ‘accelerated possession procedure’.

The Notice alone merely seeks possession of the property. It can be, and often will be, sufficient for a tenant to leave the property, but for the tenant to be forced to leave, it must be legally valid. The landlord will have to wait until after the date given in the Notice (the Notice period) and then go to court by issuing a claim, to obtain a possession order and a Section 21 eviction warrant which is executed by court bailiffs. 

The Differences Between Section 21(b) and Section 21(a)

Where there is a fixed term tenancy in place, and the Section 21 Notice is served on or before the last day of the fixed term, the landlord must give notice under Section 21 (1) (b).

Where there is a fixed term tenancy, and the term has expired, notice must be given under Section 21 (4) (a) of the Housing Act 1988. When there is no fixed term —  for example, a different type of tenancy such as an assured shorthold tenancy — the notice is given under Section 21(4) (a).

What Makes a Section 21 Invalid?

Numerous factors can invalidate a Section 21 Notice issued by a landlord seeking possession. These include:

  • A Section 21 Notice is only applicable to tenants who have an assured shorthold tenancy agreement. If the tenant holds a different tenancy arrangement like a Contractual Periodic tenancy or a Fixed Term tenancy, the Section 21 Notice will automatically be invalid unless the latter has a break clause or either tenancy has finished.
  • All the information on the Notice must be completely accurate. This includes the tenant’s name, the property address, the landlord’s information, and the details of any letting agent.
  • The landlord must use the correct version of the form, known as Form 6a. 
  • Which version depends upon when the tenancy started and when the Notice is served.
  • The landlord is required to protect the tenancy deposit. Failure to do this can invalidate a Section 21 Notice unless the deposit has already been returned.
  • The landlord is required to provide certain key information about the deposit to the tenant – this is called prescribed information and should include details such as the deposit protection scheme and how the tenant will get the deposit back when they leave. Failure to provide all the information (absolutely clearly and correctly) and/or to protect the deposit correctly can invalidate a Section 21 Eviction Notice.
  • If the type of letting arrangement in the property requires a Licence and the landlord does not have one —  for example, if the property is a House in Multiple Occupation (HMO) —  then the Section 21 Notice will be invalid.
  • The landlord has not gone to court for Section 21 eviction proceedings within six months of serving the Section 21 Notice. However, there are some circumstances where the Notice may still be valid and the landlord can proceed to obtain a possession order.
  • The landlord is legally obliged to provide the tenant with certain documents including a Gas Safety Certificate which is no older than twelve months, an EPC (Energy Performance Certificate) and the correctly dated version of the How to Rent guide. The Rent guide and the Gas Safety Certificate must have been provided before the tenant moved in or the Section 21 could be invalid.
  • If the Section 21 Notice has been triggered by a tenant’s complaints and/or the landlord’s failure to carry out timely repairs to the property
  • The landlord charging fees outside the scope of a prescribed list of legitimate costs
  • If the deposit the landlord charged is too high for the property and tenancy agreement, then the Notice can be invalid.
  • The landlord has not given the correct notice period —  special rules may apply due to the Covid-19 pandemic —  and is asking the tenant to leave the property.
  • A Section 21 Notice is invalid if the local council has served an Improvement Notice within the last six months or a notice that says it will undertake emergency works on the property.
  • The landlord does not meet the requirements stipulated under the local authority landlord licensing scheme – not every local authority runs a licensing scheme.

It is important to take professional advice if you receive a Section 21 Notice as there are many grounds to challenge its validity —  the law describes these as ‘defects’ —  this could affect the action the tenant takes and potentially avoid eviction. If the Section 21 Notice is invalid for any reason, then the tenant can stay in the property and challenge the eviction. The landlord can also be ordered to pay the tenants legal costs.

The court has no discretion to rectify even minor defects in a Section 21 Notice, and therefore landlords, agents and investors should be incredibly careful to avoid losing or wasting time and money through invalid Notices.

How To Serve a Section 21?

It is essential to construct and serve the Section 21 Notice correctly. Otherwise, the Notice can be ruled invalid by a court, and the tenant can avoid eviction.

If the tenancy started or was renewed after 30 September 2015, a landlord must use Form 6a — or the Notice can be written within a letter, but must contain all of the same information. Normally, a Section 21 Notice must provide the tenants with a notice period of at least two months, but Covid-19 has changed these rules. The Notice period may be longer depending upon the date on the Notice. The rules differ in England and Wales.

Conclusion

A Section 21 Notice has always been regarded as the quickest and easiest way to regain possession of a rented property, but it does need to be correct in its form with proof of service. 

Covid-19 has changed the notice periods at different times so that tenants do not suffer hardship if they must find somewhere else to live. These rules continue to evolve.

If you are a landlord or agent who need to regain possession of a property a Section 21 Notice can be a useful way to achieve this. If you are a tenant and receive a notice, take legal advice – there is a notice period and time for you to make arrangements, so there is no need to panic. A specialist litigation solicitor can draft a valid Notice, and can advise the relevant rules in England and Wales applicable at the time, and can advise you of your options to regain possession as quickly as possible. We complete this work for landlords on a fixed fee basis.

Posted by:

Jonathan Waters
Solicitor

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