Section 21 notice

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The purpose of this page is to help landlords understand a section 21 notice and the routes available also the general procedure for starting possession proceedings.

Take note, landlords renting residential property should be aware that tenants have rights in law which prevent them being evicted or unlawfully harassed by landlords. It is a legal requirement that landlords obtain a possession order from a court before they can start to exercise any right to possession or re-entry to the property.

The two common exceptions are properties let as a holiday letting, and properties where the landlord is resident in the same property as his tenant. A landlord who evicts a tenant without first obtaining a court order is committing a criminal offence and heavy penalties may apply. There are two main routes for obtaining possession under assured shorthold tenancies:

• section 8 route
• section 21 route

If the tenancy is an assured shorthold tenancy, then the landlord has a right to possession at the end of the tenancy under section 21 of the Housing Act (the 'section 21 route'). Section 8 does not apply to these cases (unless there are other grounds such as rent arrears) and you should use the section 21 route.

Where a landlord wishes to get possession from an assured (or assured shorthold) tenant before the fixed term has come to an end (e.g. due to default by non-payment of rent), he must serve notice of his intention to seek possession before possession proceedings can be commenced. This procedure and notice operate under section 8 of the Housing Act 1988, and for this reason, we refer to it as the section 8 route and section 8 notice respectively

Where both routes apply (say, for example, where the tenancy is at an end and there are also rent arrears), then the section 21 route is generally preferred as it is simpler and often quicker.

Where the tenancy is a common law or contractual tenancy (e.g. a residential tenancy granted to a company), then a different set of notice requirements will apply. It will, in many cases, be necessary to serve a notice to quit on the tenant before a possession action can be commenced. There are different rules for service of a notice to quit and the notice must be served in the prescribed form.

Generally, the section 8 route is used where there is some default on the part of the tenant. The most common type of default during the term of the tenancy will be non-payment of rent, but any breaches of the terms of the tenancy agreement can also lead to possession proceedings (e.g. damage to the property, nuisance to neighbours etc.) using this route. The court will require that the landlord, or his agent, is able to show adequate evidence or proof of the default (e.g. by supplying a schedule detailing the rent arrears) before it will order the tenant to move out of his rented home.

It is important, therefore, when using the section 8 route, for the claimant to understand clearly the different grounds and which will apply. The Housing Act 1988 defines 17 grounds under which a landlord may apply to the court to bring the tenancy to an end. Some grounds require that the court automatically award possession if the ground is proven, whereas, in others, the court may exercise its discretion.

Whichever possession route is adopted, the landlord is normally required to serve a notice on his tenant of his intention to bring possession proceedings before court action can be started. The notice varies depending on the type of tenancy, the route adopted (section 8 or section 21), and the grounds used (if section 8 route is adopted).

For example, if the landlord requires possession at the end of a fixed term tenancy (under section 21), he is required to serve two months' notice on the tenant, a section 21 notice Only when the notice has expired can he start possession proceedings.

Warning: Although there is no prescribed form for a section 21 notice you must ensure that the notice complies with the statutory requirements. These are:

* Notice must specify the date after which the tenant is to give up possession.

* This date is the last day of the period of the tenancy, CANNOT be earlier .

* That date must not be earlier than two months after the date the notice was given      

* The date on the notice must not be earlier than the earliest date on which the tenancy could have been brought to an end by notice to quit. For example if it is a quarterly period tenancy, then one quarter’s notice must be given.

* Section 21 notice although there is no prescribed form you must stipulate that it is a section 21 notice.

After you have read this page and you need further advice or you need a notice served, you can send a email. Click here >

evict@regencylaw.co.uk

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