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Section 21 Notices – A Guide for Landlords

Section 21 Notices – A Guide for Landlords

If you’re a landlord seeking assistance with providing advice on and serving a ‘section 21’ notice, we offer our services at a fixed cost.

The procedure outlined in Section 21 of the Housing Act 1988 enables any landlord to terminate an Assured Shorthold Tenancy after the fixed term, typically 6 or 12 months, has concluded.

What Are the Benefits of the Section 21 Notice Procedure?

One significant advantage of a section 21 notice is that it doesn’t require the landlord to establish grounds for possession based on the tenant’s default, which is necessary for the procedure under Section 8 of the Housing Act 1988. Although we can offer advice on Section 8 when required, Section 21 provides an alternative, simpler route to obtaining vacant possession of your rental property when executed correctly.

When executed properly, Section 21 of the Housing Act 1988 allows landlords to regain possession of their rental property without the need for a court hearing. However, this process isn’t without its complexities, as certain criteria must be met, and landlords must adhere to an ever-growing list of requirements that may restrict their ability to serve such a notice.

Assuming you meet the criteria, you can opt for the “accelerated possession procedure.” This route allows you to obtain an order for possession, even if there has been no default by the tenant, and it doesn’t involve a court hearing. In theory, this could be a quicker way to regain control of your rental property.

When Is a Section 21 Notice Necessary?

In most cases, tenants and landlords can mutually agree to terminate a tenancy without the need for a Section 21 notice. However, there are several scenarios where such a notice becomes essential. It’s crucial to emphasize that landlords should not attempt DIY methods, such as changing locks or harassing tenants to leave, as these actions are likely illegal and may lead to punitive damages.

Landlords often turn to solicitors to serve a Section 21 notice in the following situations:

  1. As an alternative to pursuing an eviction based on tenant fault under Section 8 of the Housing Act, such as when the tenant is in rent arrears or consistently pays late. This can be a quicker way to remove the tenant and avoids uncertainties associated with proving a Section 8 ground.
  2. When a tenant has been “advised” by a third party, particularly a local authority, not to vacate the property without a court order, as this would label them intentionally homeless and render them ineligible for council rehousing. This scenario often occurs when a tenant loses their job or becomes unable to work due to illness.
  3. When a landlord is selling the property and needs to ensure the tenant vacates to facilitate the sale, as vacant possession is required per the sale contract.
  4. When landlords realise they made mistakes during the initial notice process. This procedure can be intricate, and errors in drafting or failure to consider statutory rules or case law may render the notice invalid, necessitating a reissue – often many months after the initial notice was served, potentially resulting in substantial rent arrears.

When Can Possession Be Regained?

The court can only order possession after the fixed term of the Assured Shorthold Tenancy (AST) has ended. An AST typically lasts for a minimum of 6 months, but it can be for longer periods, such as 12 or 24 months.

This means that using this method to end a 12-month tenancy with arrears when only 4 months have passed may not be suitable, although the specific circumstances of each case should be considered.

Additionally, the court must be satisfied that:

  1. The Assured Shorthold Tenancy has ended, and no further AST exists other than a periodic tenancy (typically, a fixed-term tenancy that has expired will automatically become a statutory periodic tenancy, usually on a month-to-month basis).
  2. The landlord has provided the tenant with the required minimum written notice period. In most private rented sector ASTs, this is a minimum of two months’ written notice.

Serving a Section 21 Notice A notice under Section 21 of the Housing Act 1988:

  • Can expire on any day, including weekends.
  • Can be served before the tenancy expires, with the intention for it to take effect on the date the tenancy ends, which can be useful for addressing problematic tenants without invoking the Section 8 procedure.
  • Although there is no minimum fixed term, no possession order will take effect sooner than six months after the start of the original tenancy.
  • Does not need to specify grounds for possession.

However, the rules are somewhat more complex, as a Section 21 notice:

  • Must be in a prescribed form.
  • Cannot be served within four months of the tenancy’s start.
  • Expires six months from the date it’s given.
  • Cannot be served if retaliatory eviction under Section 33 of the Deregulation Act 2015 is a concern.
  • Can only be served if the landlord has complied with legal requirements related to providing an Energy Performance Certificate (EPC), a gas safety certificate, and prescribed information about the rights and responsibilities of both the landlord and tenant under the AST (as set out in “How to rent: The checklist for renting in England”).

Regarding this last point, there are complex rules and case decisions associated with these requirements. We can guide you through these and advise on any necessary steps before serving the notice.

The method of service (e.g., post or personal delivery) can also significantly impact the final outcome. This area can be intricate, as demonstrated by recent cases regarding postal service and deemed service provisions.

Key Issues Arising from Non-compliance with Legal Requirements

Non-compliance with various statutory requirements can effectively restrict the service of a Section 21 notice. Ignoring these requirements is a significant risk, as an invalid Section 21 notice will not result in a court-granted possession order through the accelerated possession procedure. It might necessitate starting the process anew, leading to wasted time and potentially accumulating rent arrears.

Key areas of concern include:

  1. Service of the notice, which may not be as straightforward as it appears.
  2. Compliance with legal obligations concerning Gas Safety certificates and Energy Performance Certificates (EPCs).
  3. Strict requirements for joining a Tenancy Deposit Scheme (TDS) when a tenancy deposit is paid and providing prescribed information to the tenant within the specified time limits.
  4. Providing the tenant with certain prescribed information about their rights and responsibilities under an AST.
  5. Compliance with the Tenant Fees Act 2019.

In some cases, missing information or compliance can be rectified “late” i.e., before serving the Section 21 notice. However, legal guidance on the specific circumstances may be necessary. For example, when the “How to rent” checklist is served late, should the version current at the date of service or the version current at the date the tenancy was entered into be served (our advice is to serve both).

How Can We Assist You?

For further advice and assistance, please reach out to Adem Esen at Kenneth Elliott and Rowe Solicitors. Adem is a solicitor with Higher-Courts Civil Proceedings rights, experienced in dealing with the service of Section 21 notices and accelerated possession proceedings in England.

Contact Information: Email: adem.esen@ker.co.uk Phone: 01708 707851

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