Issuing a section 21 notice

March 8, 2019 Leave a comment

If you’re a new landlord, it is important to understand what a section 21 notice is. This short post tells you what one is, when you should use one, and how to use it.

When you’re letting your property, finding tenants and having them sign a tenancy agreement will seem like the most urgent tasks.

However, at the start of the tenancy you should also be thinking the end – about gaining possession when you want the tenants to leave. Your property is high-value, most likely an important source of income to you, and you need to make sure you can access it when you want to do so.

Tenants’ right of security of tenure

Tenants have many rights given to them by law, including those that protect them from being evicted unfairly.

It’s not as easy to end a tenancy as many new landlords believe. There is a process prescribed by law that you have to follow.

An assured shorthold tenancy gives a tenant what is known as security of tenure.

This is the right not to be evicted.

However, the tenant only has security of tenure for what is known as the fixed term of the tenancy. The fixed term is defined in the tenancy agreement, and is a minimum of six months. You cannot ask a tenant to leave during the fixed term – if you do, he or she is under no obligation to do so.

Likewise, the tenant cannot vacate the property during that period. So the landlord, you have the security of knowing that your property will be rented for at least the duration of the fixed term.

After the fixed term ends, the term is known as periodic. The tenancy continues on the same basis as it was during the fixed term, i.e. the rent remains the same.

However, the tenant can give one months notice, and the landlord can usually give two months notice. It is unusual to do so, but a landlord can choose to give more notice if he or she wants to, and this can be made a contractual obligation in the tenancy agreement if the landlord wants to do so.

Section 21 notices

A section 21 notice is a statement from the landlord to the tenant that the landlord wishes the tenants to vacate the property and return it to the landlord.

It’s called a section 21 notice because the requirement to use those specific words is a provision of section 21 of the Housing Act 1988.

A section 21 notice only ends an assured shorthold tenancy. If you have a different type of lease such as one for a commercial property, or one for a different type of residential tenancy, then a section 21 notice should not be used.

In addition the Housing Act 1988 applies only to England and Wales, so section 21 notice should not be used in Scotland or Northern Ireland.

Since the tenant can only move out during the periodic term, a section 21 notice can only be issued two months before the end of the fixed term or during the periodic term. If the landlord wants to evict the tenant before then he or she has two options. Either he or she can agree with the tenant that the tenant should leave (by mutual agreement between the two parties), or he or she can issue a section 8 notice. However a section 8 notice can only be used if the tenant has breached the tenancy agreement, i.e. has not paid the rent.

For a section 8 notice to have any force, the landlord needs to be committed to taking the tenant to court if he or she does not leave the property. Since the court process is time-consuming and expensive, needless to say stressful, the amount of rent owed needs to be sufficient to pursue this.

Once a fixed term ends, and the tenancy is on a periodic basis. The time length of the period is the time between rent payments. If the rent is paid weekly then a period is a week. If rent is paid monthly in the period of the month. The length of the period is important because the tenant can only leave at the end of the period.

There are two types of section 21 notice. It used to be important as to which one you should use. Nowadays a section 21b notice can be issued regardless of the situation.

It’s fairly common to serve a section 21 notice at the beginning of the tenancy so that the tenant has plenty of warning that he must move out at the end of the fixed term, or after a certain amount of time has elapsed. If the landlord or his agent intends that a new tenancy agreement should be signed every year, then he or she might issue a section 21 notice giving notice that the tenancy will end after a year.

There is no prescribed format for a section 21 notice. It just has to be served in writing and certain information must be given. Other forms of communication such as email and telephone are not valid.

Each tenant must be named on the notice is on the tenancy agreement. It is recommended that you give each tenant his or her own copy of the notice. It is good practice as well for the tenant to sign a second copy and return it to you.

If the property is owned by more than one person any of them can serve the notice.

Keep a copy of the notices and the covering letters that to use. Send the notices by recorded delivery allowing least three days for them to be received. Make sure that you keep the receipt of recorded delivery.