Section 21 Notices

Section 21 of the Housing Act 1988:

Section 21 of the housing Act 1988 provides a Landlord with a legal right to obtain possession of his property from the Tenant at the end of the Tenancy. This legal route may only be used for an Assured Shorthold tenancy and not for an Assured tenancy.

The Landlord's claim for possession involves serving Notice of his intention to seek possession. This Notice is called the Section 21 Notice.

Section 21 proceedings are used at the end of a tenancy and different rules are applicable depending on whether the tenancy is a fixed term tenancy or a periodic tenancy. For more information on fixed term tenancies and periodic tenancies, see Residential Tenancy Law.

Fixed Term Tenancies:

A fixed term tenancy is where the tenancy is granted for a specific length of time, e.g. 12 months. A fixed term tenancy will automatically turn into a periodic tenancy once the specific length of time has expired, unless the parties reach a new agreement or terminate the tenancy.

A Section 21(1)(b) Notice is required in cases where the tenancy is a fixed term tenancy as opposed to a periodic tenancy.

The Landlord must give the Tenant a minimum of 2 months notice and the Notice must be served on the Tenant at any time during the fixed term. The Notice may not be served before the fixed term begins. Where the Notice is served on the last day of the fixed term, the Tenant is still entitled to 2 months notice and therefore the Landlord will only be entitled to regain possession 2 months after the fixed term tenancy agreement has expired. Should the Landlord wish the Tenant to leave on the last day of the specified period, the Landlord should serve the Notice 2 months before this date. Where The Tenant is are still in the initial 6 months of a fixed term tenancy, the Notice may not expire before the end of that 6 month period. Where the Notice is served during a fixed term tenancy but is only due to expire once the tenancy has become a periodic tenancy, Notice must still be served as per the fixed term tenancy.

For example, if the period of the tenancy is 12 months and the first day of the period is 1 January then the last day of that period will be 31 December and so the Notice should be served 2 months prior to 31 December, i.e. on or before 1 November. Where there is a 6 month break clause in the tenancy agreement, the Notice may be served anytime after 1 January but before 30 April allowing for 2 months notice. The Tenant will only be required to leave on 1 July in these circumstances.

It is crucial that the Tenant be given a minimum notice period of 2 months and one should rather err on the side of caution and provide more notice than risk the Notice becoming invalid due to lack of sufficient notice.

Periodic Tenancies:

A periodic tenancy is where there is no specified length of time involved but the tenancy will carry on for additional specific periods, usually determined by the frequency of rental payments, e.g. monthly or quarterly. A fixed term tenancy will automatically turn into a periodic tenancy once the specific length of time has expired, unless the parties reach a new agreement or terminate the tenancy.

A Section 21(4)(a) Notice is required in cases where the tenancy is a periodic tenancy as opposed to a fixed term tenancy.

The Landlord must give the Tenant a minimum of 2 months notice and the day on which the Notice expires must be the last day of a period of the tenancy. The period of a tenancy will depend on how often the rent is paid. Therefore, if rent is paid monthly then the period of the tenancy is one month. The periodic tenancy begins immediately after the fixed term tenancy expires.

For example, if the period of the tenancy is monthly and the first day of the current period is 1 June then the last day of that period will be 30 June and so a notice served during the current period (i.e. in the month of June) will need to be completed so as to expire on the last day of a period after a further two months (i.e. 30 August).

It is crucial that the Tenant be given a minimum notice period of 2 months and one should rather err on the side of caution and provide more notice than risk the Notice becoming invalid due to lack of sufficient notice.

Possession Proceedings:

A Section 21 Notice should be drawn up in the prescribed format and served on the Tenant. Where there is more than one Tenant, service on all of the Tenants is necessary. Service may be effected either by post (preferably by registered or recorded delivery) or in person (preferably with an independent witness present).

Once the Notice has been served on the Tenant, the Landlord must wait until the Notice has expired (the expiry date should be provided on the Notice). Should the Tenant not have vacated the property or otherwise rectified any applicable default, the Landlord should apply to court for an order claiming possession.

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