Section 21 Notices

Shilpa Mathuradas

Guide to section 21 no-fault evictions

Evicting tenants is never easy but under the no-fault eviction process, it should be less complicated. Our landlord and tenant solicitors can support you through the process, whether you are giving or receiving a section 21 notice.

What is a section 21 notice?

Section 21 of the Housing Act 1988 allows a landlord to evict a tenant for no specific reason, as long as:

• The tenancy is an assured short-hold tenancy (AST), and
• The fixed term of the tenancy has come to an end, or the tenancy is a ‘rolling’ tenancy with no end date, and
• The correct legal process is followed.

Section 21 evictions are commonly referred to as ‘no-fault’ evictions because the landlord does not have to prove that the tenant has breached the tenancy agreement.

At Osbornes, our specialist property litigation solicitors can support landlords who wish to issue a Section 21 notice, as well as tenants who wish to challenge this type of eviction. We provide clear and practical advice on all matters including:

• Whether a section 21 notice can be used.
• Whether a section 21 notice is the best option for your situation.
• Serving a section 21 notice.
• Contesting a section 21 notice.
• What to do if the tenant does not leave after the section 21 notice has expired.

When can a landlord use a section 21 eviction?

Section 21 evictions are based on the expiry of a tenancy agreement rather than any fault on the part of the tenant. However, there are several qualifying circumstances that have to be met before serving the notice:

At the start of the tenancy:

• The landlord must provide the tenant with a pack of prescribed information which includes a gas safety certificate, an Energy Performance Certificate, and a copy of “How to Rent”, which is a government guide for renting homes in England.
• If a security deposit has been taken, it must be placed in a government-approved scheme within 30 days of receipt.

To serve the Section 21 notice:

• Notice must be served in writing, using the prescribed form of notice, and not by email or over the phone.
• The notice can only be served at the end of the fixed term of the tenancy, or during its rolling period. You cannot serve notice during the first four months of an assured shorthold tenancy. Be extremely cautious when serving notices: if you serve the notice even one day too early, the whole process could become invalid and you will have to start again.
• The notice must provide at least two clear months’ notice, meaning that the tenant has two full months to vacate before the expiry of the notice. The time begins from the date the tenant receives the notice, not when it is sent.

Other requirements

• Landlords cannot serve a section 21 notice if they have failed to address complaints made by the tenant about the condition of the property. This is known as “retaliatory eviction” and is illegal.
• Taking a prohibited payment, such as charging an illegal fee, also invalidates a section 21 notice.
• There are specific rules about how landlords can serve a section 21 notice on the tenant. Failure to follow the right service methods, or even failing to factor in two additional working days for postal delivery of the notice, could see the eviction ruled unlawful.

The section 21 notice form may look deceptively simple but there are several potential traps for the unwary.

We regularly draft and serve section 21 notices on behalf of landlords giving them confidence that they are acting lawfully and protecting their investment.

I didn’t protect the deposit or serve the prescribed information, can I still issue a section 21 notice?

If you failed to protect the tenant’s security deposit within 30 days of receipt, or failed to provide the prescribed information, then you cannot serve a valid section 21 notice.

What happens next depends on exactly how you have breached the requirements. If the deposit has been properly protected, it may be possible to deliver the prescribed information and subsequently serve a valid section 21 notice.

If the deposit has not been protected at the start of the tenancy, protecting late will not help. You will have to give the deposit back to the tenant before you can serve a valid section 21 notice.

Can a tenant contest a section 21 notice?

Tenants who are served a section 21 notice can contest it by showing that the correct legal procedure was not followed. This includes situations where:

• The security deposit has not been protected.
• The tenant didn’t get the right information about their deposit.
• The tenant was not given the right documents at the start of the tenancy.
• The landlord did not use the correct form of notice.
• The section 21 notice has a mistake on it.
• The eviction is retaliatory, for example, the tenant complained to the landlord or asked for repairs.

If a section 21 is not valid, the tenant will be able to stay in the property and challenge the eviction. This is called “defending possession.”

The onus is on the landlord to enforce the section 21 notice. While tenants are always free to negotiate with their landlord, they must wait until the landlord applies for a Possession Order to officially challenge the eviction.

Gaining possession under the accelerated possession procedure

If the tenant does not move out by the end of the notice period, the landlord can apply to court for a Possession Order. The time limit for doing this is six months from the date of the notice; miss this date, and a fresh section 21 notice must be served.

The court application must include evidence that all legal requirements have been met.

Section 21 evictions are dealt with under the accelerated possession procedure. This is a faster procedure than the one used for fault-based section 8 evictions.

Under the accelerated procedure:

• The court will send a copy of the landlord’s papers to the tenant. The tenant has 14 days to respond.
• If there is no response within that time, or if the court deems their response invalid, then possession is awarded to the landlord without the need for a court hearing. The tenant will usually have 14 days to leave the property.
• A hearing may be necessary if the tenant disputes the validity of the notice or wants a longer time to move out due to exceptional hardship.

If the tenant doesn’t leave by the date stated in the Possession Order, then the landlord will have to take the additional step of applying to the court for a warrant of possession. The court will then arrange for bailiffs to evict the tenant. It is a criminal offence for landlords to evict the tenant themselves without a court order.

Applications for Possession Orders can be tricky and can sometimes fail due to a procedural mistake. Working with an experienced evictions solicitor, like the landlord and tenant team at Osbornes, can ensure that the process is carried out smoothly and efficiently, avoiding costly delays.

Plans to abolish section 21 notices

The government plans to abolish section 21 evictions. If the Renter’s Reform Bill is passed in its current form, landlords would be required to give a valid reason for eviction, serving notice under a newly worded section 8 instead. Section 8 would allow landlords to evict a tenant under ‘reasonable’ circumstances, which includes:

• Rent arrears
• Damage to the property
• Anti-social behaviour
• The landlord wants to sell their property
• The landlord wants to move in (or have a family member move in)

More information about the plans to abolish section 21 evictions can be found in our article, End to No-fault Evictions.

There is no guarantee these changes will become law and no timeframe has been set for implementation. However, if you are a landlord requiring possession of property in the near future, now might be a good time to think about your options for serving a section 21 notice.

Our solicitors offer a free, no-obligation call and would be happy to discuss your situation.

How we can help

Section 21 offers an easier way for landlords to gain possession of their properties but the process still requires careful attention. The law protects tenants’ rights and will not support self-help evictions. Osbornes Law can advise both landlords and tenants who are navigating the end of a tenancy and issues around possession – do not hesitate to get in touch.

To speak with one of our solicitors, contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811