Article on Section 21 Notice

What is a section 21 notice?

A section 21 notice is used to evict tenants on an assured shorthold tenancy, even if they have not broken the terms of the tenancy agreement. For that reason, it is called a no-fault eviction. It can be used to evict the tenants either after a fixed-term tenancy ends, or during if there is a break clause in the tenancy agreement, or during a rolling periodic tenancy.

The landlord must give the tenant at least 2 months’ notice to vacate the property, however it could be longer if the landlord wishes. The landlord may need to give a longer notice period if they have a ‘contractual’ periodic tenancy. This arises when a fixed-term tenancy has ended, but the tenancy agreement included a clause to make it continue as a periodic tenancy. The amount of notice must be the same as the rental period. For example, if the tenant pays rent every 3 months, the landlord must give 3 months’ notice.

What makes a section 21 notice invalid?

For a landlord to validly serve a section 21 notice, they must ensure compliance with legal guidelines and requirements before serving the notice. Some factors that may be overlooked and consequently invalidate the notice are:

Not using the correct form

• A landlord must ensure that they are using the correct and most up-to-date form. The government’s form 6A could be used, or alternatively drafting a notice including all the required information.

Serving the notice too early

• A section 21 notice cannot be served within the first 4 months of the tenancy. It also cannot be served if the original fixed term has not ended, unless there is a clause in the tenancy agreement that allows the landlord to do so.

The tenant’s deposit is not protected

• For tenancies that started after April 2007, the tenant’s deposit must have been protected in a deposit protection scheme. The time frame in which the landlord should have protected the deposit will depend on when the tenancy started, usually it is within 30 days of the start of the tenancy. If the landlord breaks the deposit protection rules, they must return the deposit before serving a section 21 notice.

Not providing the right tenancy documents

• For tenancies that started prior to 1 October 2015, the landlord is not obligated to have provided the tenant with copies of the gas safety certificate, energy performance certificate (EPC), or the government’s up-to-date ‘How to rent guide’, and they can serve a section 21 notice without doing so. However, if the tenancy started on or after 1 October 2015, the landlord must have provided these documents to the tenant at the start of the tenancy before serving a section 21 notice. If the landlord has not provided the documents at the required time, they can still provide them later but before serving a section 21 notice.

Charged banned fees

• For tenancies after 1 June 2019, most tenancy-related fees are banned, as well as deposits worth more than 5 weeks’ rent. If the landlord overcharged the tenant, they must pay them back before they can serve a section 21 notice.

If the house should be licensed but is not

• If the property is classified as a house in multiple occupation (HMO) but the landlord does not have a license from the council, they cannot serve a section 21 notice.

If the council has given an improvement notice or an emergency works notice

• The landlord cannot serve a section 21 notice within 6 months of the council giving them the above-mentioned notices.

Not enough notice

• As previously mentioned, the notice period has to be at least 2 months. If the tenancy is a contractual periodic tenancy, it will depend on the rent payment period. In that case, the notice period has to be the same as that of the rental period.

What happens after the notice is served?

The tenant should have vacated the property by the end of the notice period. If the tenant is still occupying the property after the notice period has ended, the landlord must get a possession order from the court to get a possession order within 6 months after giving the notice.

If the landlord does not apply to the court within the required time, the notice served stops being valid. Meaning that the landlord has to serve a new section 21 notice, and wait for the specified time before proceeding to court.

If a tenant believes the section 21 notice is invalid, they can either defend the claim through a defence form or attend the hearing and inform the judge why they believe so.

If the court finds the notice to be valid, they will issue an order in favour of the landlord specifying a date on which the tenant has to leave the property.

If the tenant does not leave by the date on the court order, the landlord can have bailiffs evict the tenant.

Farida Hashim

Property Legal Intern

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