Short Guide to Residential Possession: Section 21 of the Housing Act 1988

Notices Seeking Possession, commonly referred to as Section 21 Notices by the section number of the Act from which they originate, were introduced by the Housing Act 1988 (as amended) to provide landlords with a simple process by which to get possession of their property. These are used where there has been no breach of the tenancy agreement, as opposed to the use of Section 8 Notices.

IMPORTANT NOTE: It is unlawful to remove a tenant of residential property without an Order for Possession from the Court.

To be able to apply to the Court, where there is an Assured Shorthold Tenancy, a landlord must first serve a Section 21 Notice providing more than 2 calendar months’ notice that possession of the property is required.

There are 2 types of Section 21 Notice and it is vital to make sure that the correct one is used. The distinction is between the type of tenancy, whether fixed term or statutory periodic tenancy. All Assured Shorthold Tenancies begin as fixed term tenancies, commonly this is either for 6 or 12 months. Once that fixed term comes to an end, except where the tenancy itself is terminated, the AST “rolls over” by operation of law and becomes a Statutory Periodic Tenancy. These tenancies run from period to period, most commonly this is month to month and so slightly different rules about bringing them to an end and seeking possession then apply.

There have been studies showing that a very large proportion of Section 21 Notices served and then used in Court proceedings were drafted incorrectly by containing the wrong date. The Courts have attempted to reduce the way in which such “technicalities” are fatal to Possession Claims, such as in the case of Spencer v Taylor. However, ensuring that it is done correctly in the first place will save time, expense and the risk of having to start the process all over again, which is the consequence. Taking professional advice from a lawyer at an early stage can prove to be much more cost effective.

The type of "Section 21 Notice" used depends on whether the AST was for a fixed term; or was a periodic tenancy, arising where the tenant remained in occupation after expiry of the fixed term.

The two types of Section 21 Notice are:

S21(1)(b) – this notice must be served if it is a fixed term tenancy. It must give at least 2 calendar months’ notice to the tenant and, if new legislative provisions apply to the tenancy, it cannot be given until 4 months into the tenancy;

S21(4)(a) – this notice must be served during a statutoryperiodic tenancy, after expiry of the fixed term. Not less than two months’ notice is required and it should expire on the "last day of a period of the tenancy".

TIP: An easy way to remember which Section 21 Notice is needed is (1)(b) for “(1)(b)efore” the fixed term ends and (4)(a) as “(4)(a)fter” the fixed term has ended.

IMPORTANT NOTE: Before serving any Section 21 Notice a landlord must ensure that they are eligible to do so by having complied with all of the requirements that have to have been met under The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, as a pre-requisite, as per the checklist of main requirements below:

CHECKLIST

• • Energy Performance Certificate
• • Landlord gas safety certificate
• • Tenancy Deposit Protection
• • Prescribed Information
• • How to Rent Booklet
• • Format of Notice (pre-October 2015 or post-1st October 2015)

If you are unsure about these then it is important to seek professional legal advice to make sure that Section 21 Notice can be used. It is also a good idea to include copies of the items from the checklist with the Section 21 Notice to avoid any doubt.

The new rules apply to Assured Shorthold Tenancies granted after the relevant parts of the Deregulation Act 2015 come into force, for these it is 01 July 2015 and or 01 October 2015. For AST’s started before any relevant dates then these do not yet apply, even if the tenancy rolls over to become a Statutory Periodic Tenancy.

On and after 01 October 2018, however, all provisions will apply to all Assured Shorthold Tenancies in existence.

Retaliatory Evictions and Section 21 Notices

Another restriction on Section 21 Notices concerns so called “revenge” or retaliatory evictions. These have occurred in the past where landlords have threatened to evict tenants based on the simple fact that they have made a complaint about the property’s condition.

From 01 October 2015 landlords in England cannot rely on a Section 21 Notice if:

• 1. The tenant has complained about the condition of the property, which can also be the common parts of a building where the property is situated; and
• 2. The landlord:
  • a. Did not respond to the tenant within 14 days or at all; and or
  • b. Provided an inadequate response to the tenant complaint; and or
  • c. Responded by serving a Section 21 Notice

It is open to tenants to complain to their local authority housing department and they can take action, including serving enforcement notices, which can prevent a landlord seeking possession by way of Section 21 Notice for 6 months and impose other conditions.

TIP: It is vital to ensure that any tenant issues are responded to as soon as possible to prevent them escalating and becoming an issue when it becomes necessary to obtain possession.

Steps to an Order for Possession

• 1. Draw up the section 21 Notice in the correct and prescribed format and ensure that all of the requirements are met;
• 2. The expiry date of the Notice must be clearly shown and defined so that action can be taken once it has expired;
• 3. Serve the Notice on the Tenant, or each Tenant if there is more than one. This should be sent by First Class Post and Recorded Delivery if possible. When sending by First Class post a receipt should be obtained. Some people will also do each method from a different post office to ensure that the Notice(s) reach the Tenant(s) by service and can be proven to have done so.
• 4. The Landlord must now wait until the Notice has expired; and
• 5. If the Tenant does not leave the property voluntarily by the time that the Notice has expired then a Claim for a Possession Order will need to be made at Court.

LMD Law can provide assistance to Landlords throughout the process of seeking a Possession Order as well as to Tenants who may face proceedings against them.

For a FREE no obligation initial discussion about your matter please don’t hesitate to get in touch with us.

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