Article on Section 21 Notice

Farida Hashim
Trainee Solicitor

What is a section 21 notice?

A section 21 notice lets landlords evict tenants on assured shorthold tenancies, even without tenant faults. This is the reason it’s called a no-fault eviction. Landlords can use it after a fixed-term tenancy ends, during a tenancy if a break clause exists, 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 could be overlooked and consequently invalidate the notice. For example:

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

• Landlords cannot serve a section 21 notice during the first 4 months of the tenancy. They also cannot serve it before the original fixed term ends unless the tenancy agreement includes a clause permitting this.

Furthermore

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 before 1 October 2015, landlords don’t need to provide safety certificates or the ‘How to Rent’ guide before serving a section 21 notice. For tenancies starting on or after that date, landlords must provide these documents at or before serving the notice, even if delayed.

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 requires a license but the landlord hasn’t obtained one

• 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 landlord serves the notice?

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.

Tenants can contest a section 21 notice by defending or attending court; if valid, the court orders them to leave. Failure to leave by that date allows the landlord to request bailiffs to carry out the eviction.

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