Section 21 – Notice of Possession
Ending an Assured Shorthold Tenancy
To end an Assured Shorthold Tenancy, (AST), a “Section 21- Notice of Possession” must be served on the Tenant.
What is a Section 21 Notice
A Section 21 Notice is a document that must be served on your tenant in order to regain possession of your property. A landlord can serve a Section 21 Notice without reason for doing so, on or after the coming to an end of an AST.
When can a Section 21 notice be issued?
Under Section 21 of the Housing Act 1988, a Landlord has the legal right to get his property back at the end of an AST so long as the tenancy has ended and the landlord has followed the correct legal procedures and correctly served a Section 21 Notice on the tenant or tenants. In order to fully protect yourself it is advised that a Notice be served on all tenants residing at the property, especially in the case of ‘sharers’.
If the tenancy has not ended, and there is plausible reason for eviction (i.e. rent arrears), then a Section 8 Notice should be served. However, like with a Section 21, a valid “Section 8 Notice to Quit” must be served on the tenant.
Service of Notice
The landlord should serve the notice by either post or in person.
If you decide to serve the notice by post, it is advisable that you do this via ‘recorded delivery’. This is your evidence that the notice was received by your tenant if needed by the Court. If you send your notice via post, the date of service is recognised by the Court as the day in which the letter would have arrived and not the date sent.
Alternatively, you could deliver the Notice by Hand in person. If you do decide to take this route, it is advised that you have a witness with you in order to witness the handover. It may be that your witness is required to provide a statement for the court confirming the handover if possession proceedings are commenced and your tenant argues you did not provide a legal notice.
Serving a Section 21 Notice during the Fixed Term of the Tenancy
Section 21 of the Housing Act 1988, amended under the Housing Act 1996 states, “….the landlord under a fixed term tenancy to give two months’ notice to recover possession……in writing”.
This means that a tenant covered by an AST must be given at last two months notice in writing. This must be by way of a Section 21 Notice advising them of the intention to repossess the property and the grounds that they are using to support their claim. The two months notice period commences upon receipt of the Section 21 Notice by the tenant.
Under the Housing Act 1988, possession cannot take place during the fixed term of the tenancy, but, a Notice can be served at any time so long as the tenant is given a minimum of two month’s notice. Two months after the Section 21 Notice to Quit is served the tenant is then required to leave the property. This includes Section 21 Notices served up until the last day of the fixed term.
The provisions in section 21(1)(b) applying to fixed term tenancies state:
“Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed-term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied-
a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than a statutory periodic tenancy: and
b) the landlord, or in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice stating that he requires possession of the dwelling-house.”
It is possible to serve a Notice two months before the end of the tenancy, but, it should not be dated to expire on or before the last day of the tenancy. For example, if the tenancy was due to end on 31 March, the notice could be given to the tenant three months prior to that date, (30 December) but the date on the notice must be given on or before the day on which the fixed term comes to an end (31 March).
If a Section 21 Notice is served during the initial fixed term of a tenancy, and the landlord issues a further fixed term tenancy to the tenant, the landlord would have to issue a New Section 21 Notice to the tenant in order to regain possession.
Serving a Section 21 Notice during a periodic Tenancy
At the end of a fixed term tenancy, unless a new fixed term is agreed, the tenancy automatically becomes a statutory periodic tenancy. This is a week to week or month to month tenancy, depending on how your tenant pays his rent.
Under Section 21 of the Housing Act 1988, the procedure is slightly different when serving a notice to a tenant in a statutory periodic tenant.
Section 21(4)(a) of the Housing Act 1988 applies to assured shorthold tenancies that have become periodic and states:
“Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied-
(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, …….., the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above”
As with serving a section 21 during a fixed tenancy, a minimum of two months’ notice is required and the day on which the notice expires must be the last day of a period of the tenancy.
The tenancy period depends on how often the rent is paid. If the tenant pays rent weekly, then the period of the tenancy is one week, if the tenant pays rent monthly, the period of the tenancy is one month.
The periodic tenancy begins straight after the fixed term ends, so if the fixed term ends on the 5th then the period of the tenancy begins on the 6th; as long as rent was paid monthly the last day of each period of tenancy would be the 10th of each month. Consequently, the Section 21 notice would have to expire on the 10th of a month and be served a minimum of two months before the tenth of that month.
If the tenant doesn’t leave after the section 21 expire
If the tenant fails to vacate the property by the expiry date on the notice the landlord will need to apply to the court for a possession order. Provided the correct procedure has been followed by the landlord issuing the Section 21 notice, the court will have no choice but to grant the possession order.
If the tenant fails to vacate after the court has issued the tenant with the notice to leave, the landlord can ask county court bailiffs to evict the tenant.