A landlord wanting to evict a tenant in the UK will need to follow a lawful process. Regardless of the differences between section 8 and section 21, this usually involves ending the tenancy by giving a valid notice to the tenant, issuing court proceedings to obtain a possession order, and in most cases obtaining a warrant of possession to enforce the possession order by bailiffs.
The possession process and type of notice that landlords must follow depends on the type of tenancy or licence they grant to their tenants, their reasons for wanting the tenant to leave, and whether they have complied with all legal requirements that are preconditions for the valid service of a notice of eviction.
There are important differences between section 8 and section 21 that landlords must consider when deciding which possession process they want to follow.
The Difference Between Section 8 and Section 21
In a separate blog, we discuss possession proceedings using Section 8 notices that certain property owners can use to evict tenants who have breached certain terms of their agreements and highlight some of the differences between Section 8 and Section 21.
Here we look at Section 21 notices of seeking possession and explain how landlords of assured shorthold tenancies can evict their tenants without needing to prove a reason.
The Section 21 procedure offers landlords many advantages and a quicker process but it requires the landlord to fulfil several conditions.
What is a Section 21 Notice?
A Section 21 notice is a way for landlords to end an assured shorthold tenancy (AST) without needing to give a reason. It is defined by section 21 of the Housing Act 1988 as a written notice of no less than two months requiring the tenants to give up possession of the property. The AST ends after the period given in the notice is completed. If the notice is valid, the court will grant a possession order to the landlord and the tenants will need to move.
The Section 21 notice procedure does not require the landlord to explain why they require the property back. However, it requires the fulfilment of several preconditions and specific formalities with regard to the format and period of the notice. If the tenants can prove that the Section 21 notice is invalid, they have a full defence to possession proceedings. In such cases, the court will decline to issue a possession order so the landlords must get it right. Otherwise, they will need to start the process afresh and serve a new notice to the tenants.
Serving a Valid Section 21 Notice
Firstly, in order to give a valid Section 21 notice, a landlord must use prescribed form 6A or a form substantially to the same effect, in other words containing the same wordings and information. Form 6A for a no-fault possession notice on an assured shorthold tenancy (AST) and accompanying government guidance is available on GOV.UK
A Section 21 Notice does not need to be served on the tenant in any particular way. It can be served by the landlord or their agent by post, affixed to the property, or manually put through the letterbox. However, if the tenant does not acknowledge receipt of the notice, the landlord must prove that the notice was served so it is advisable to send it by recorded delivery.
Secondly, in order to be valid, a Section 21 Notice must give the tenant the correct amount of notice period. The standard notice period of a minimum of two months, in some cases, may need to be longer. This will depend on whether the tenancy is a fixed term, statutory periodic or contractual periodic.
Thirdly, usually, a Section 21 Notice cannot be served on the tenant within the first four months of the tenancy.
The Section 21 Notice Period
If the tenancy is a fixed term assured shorthold tenancy (AST), section 21(1)(b) of the Housing Act 1988 requires the landlord to give at least two months’ notice to the tenant. However, even if the landlord can give the Section 21 Notice to the tenant at any point during the fixed-term tenancy, the landlord cannot commence court proceedings until the fixed term has ended, unless there is a break clause in the agreement that allows that.
If the tenancy is a statutory periodic AST, the required notice period is still a minimum of two months. A statutory periodic AST is a tenancy that arises automatically when a fixed term AST ends and the tenant remains in the property with permission from the property owner. In other words, when the tenant and the landlord agree that the tenancy can continue without signing a new contract.
If the tenancy is a contractual periodic AST, section 21(4) of the Housing Act 1988 requires the landlord to give the tenant a notice period equal to the length of a period of the tenancy, but of a minimum of two months if such period is shorter. A contractual periodic AST is a tenancy that rolls from week to week, or from month to month under the terms of the residential contract signed by the tenant and the landlord. If the contractual period of the tenancy is less than two months, the Section 21 Notice must give the tenant at least two months to vacate the property. If the contractual period is longer than two months, such as in the case of quarterly, six monthly or yearly tenancies, then the Section 21 Notice must give to the tenant a notice of respectively three months, six months or still six months for yearly tenancies.
Yes, the rules about notice periods are quite complex but it is imperative that landlords get them right otherwise the Section 21 Notice will be invalid and the tenant will have a full defence to possession proceedings.
Eligibility for Section 21 Notice
On top of the requirements to use the appropriate form 6A, give the tenant the correct notice period, and not serve the notice within the first four months of the tenancy, a landlord must fulfil several preconditions for a Section 21 Notice to be valid.
Before being able to serve a valid Section 21 Notice, a landlord or their agents must have complied with legislation surrounding the following matters:
- Tenancy deposit protection rules - see section 215 of the Housing Act 2004
- Energy performance certificate (EPC) and gas safety certificate – see sections 21A of the Housing Act 1988
- How to Rent guide – see section 21B of the Housing Act 1988
- Houses in Multiple Occupation (HMOs) – see section 75 of the Housing Act 2004
- Prohibited payment or banned fee – see section 17 of the Tenant Fees Act 2019
- Retaliatory eviction – see section 33 of the Deregulation Act 2015
To learn more about these preconditions to the service of a valid Section 21 Notice in more detail, click here.
The Eviction Process: What Happens Next?
After ending the assured shorthold tenancy (AST) by giving the tenant a valid Section 21 Notice, the landlord will need to issue possession proceedings in court and obtain a possession order if the tenant does not move out voluntarily at the end of the notice period. This is very likely as tenants have the right to remain in the property until the court makes the order and will often be advisable for them to do so.
Landlords must start the possession claim within a few months of giving the tenant the Section 21 Notice, otherwise they will need to serve the notice afresh. They can apply for an accelerated possession order if they are not claiming money such as rent arrears. Usually, this is a quicker procedure without a court hearing. If they are claiming unpaid rent as well as a possession order, they must apply for a standard possession order. They must fill in the appropriate court forms depending on where the property is located, and pay a court fee, currently £391.
The court has wide powers to make different types of orders depending on whether it is satisfied that the landlord is entitled to possession and/or the money claimed. In most cases, if the landlord has followed the right procedure and proved the claim, the court will make an outright possession order giving the tenant 14 days to vacate the property. Sometimes, if the tenant is vulnerable and suffers exceptional hardship, this period is extended to up to six months.
If the tenant does not leave the property by the date given in the possession order, the landlord must apply for a warrant of possession to the court to enforce the order by bailiffs, also known as enforcement agents.
How We Can Help
The service of a Section 21 Notice requires oversight and legal diligence. Taking possession proceedings against tenants can be very technical and requires knowledge of all legal requirements and court procedures. The tenant can oppose the claim or even counterclaim damages against the landlord if the correct process is not followed. The pitfalls of technical errors in the notice or court forms, and unnecessary delays in the recovery of the property, can be prevented by instructing an experienced Landlord and Tenant Law Practitioner to ensure matters run smoothly.As experts in residential property law, we can provide expert advice and representation on all repossession matters. Contact us today, send an email to info@witansolicitors.co.uk or give us a call on 0330 173 6983.
