Section 21 notices
I’m not quite sure where this urban myth comes from, but I have heard it from quite a few people.
Section 21, you will remember, is the section of the Housing Act 1988 which says that if you serve a notice on your tenant, giving all the proper information (as set out in the section) and giving the correct notice period, you will be entitled to evict your tenant.
In fact you can serve it whenever you like. So long as it is drafted properly and gives the correct notice period, it will be valid. Maybe people are getting muddled up with when you can use a s21 notice. Under the act, you can’t get an court order for possession under s21 during the first six months of your tenancy.
However that does not mean you cannot serve the notice then. On the contrary, during the fixed term of the tenancy is probably the best time to serve it. The reason is as follows:
Section 21 notices – the rules
Section 21 notices have to give at least two months notice to the tenant and must not end at the end of the fixed term. So if you serve it one month into a six month AST it will be five months long. If it is served during the final month, it will be two months long.
The important thing to remember is you cannot use it to shorten the fixed term. So those served during the third month (say) cannot have a notice period which will end after five months ie before the fixed term in the tenancy agreement ends.
Or rather you can serve such a notice but it will not be valid, and if you issue proceedings based on it, the Judge will chuck out your case.
However when it comes to serving the notice after the fixed term, things get more complex. The notice (which is then governed by a different sub section of s21) has to end at the end of a ‘period of the tenancy’.
Whats that? Well if, for example, your fixed term ends on 5th June, your rolling periodic will run from the 6th day of the month to the 5th. So the 5th will be the last day of a ‘period’ of the tenancy.
But its not particularly straightforward. Many landlords have had their case chucked out because they have just given two straight months and the notice has ended on the wrong day.
So in fact, far from saying that you can’t serve your notice during the fixed term, I would say that the fixed term is the best time to serve it. It cuts out all that business about the last day of a period of the tenancy. And saves a lot of trouble.
Plus if you want your tenant to go at the end of the fixed term, you have GOT to serve it during the fixed term. Otherwise it will be too late!
Did you think that the notice couldn’t be served during the fixed term? Why was that? Or have you had a problem with a notice which has given the wrong expiry date? Do leave a comment.
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This is a common misconception you are right! Not many landlords – or tenants – realise that if your tenancy starts on the first day of the month then the notice period ends on the last day of the month – not – as many people think the same date in one/two months time! We quite often get tenants handing in their notice siting their last day – and when we check their contract – it’s a day out most of the time..
Thanks for your comment Clare. Yes, strictly speaking, the notice should end at on the last day of a ‘period of the tenancy’ not the first.
A s21 can be served in a fixed term, to expire on the last day. However, can a landlord commence possession proceedings before the expiry of the s21 (but at least 2 months after service) in order to obtain a possession order for the end of the tenancy?
You cannot issue proceedings based on a secton 21 notice where the notice period has not yet expired. (Or rather you can, but it will fail!).
The notice period is to allow the tenant time to move. You can only issue proceedings based on the notice if the notice has been ignored. You won’t know this until the notice period has ended.
we think we have followed all correct procedures with the timings and dates on the section 21 we served our tenant basically we have issued it during the fixed term contract to cover our backs if there are any problems then we can evict them at the end of their current AST but if everything is ok (fingers crossed it is) and the tenant wants to stay where do we stand, i understand the contract will automatically become a rolling periodic agreement and that the tenant would be required to give one months notice but if we wanted to take possession of the huse again how would we go about it then, i have assumed that if we gave one months notice to the tenant that is all that is required if the section 21 notice has been correctly served?
Once the notice period has expired, strictly speaking you do not need to give any further notice (although if it has been a long time, it would be a polite thing to do)
i have a tenant that has had the section 21 2months and 1 day before the end of the term.
now the good bit we sent the section 21 by post recorded, but the post office could not give the tenant the 21 as she woud not open the door, she has tayped the letter box up as to not let post into the house, i have been today to the post office to ask as to why the post can not be deliverd and the above was the answer.
there is a lot of damage to my home broken windows, with a police log number for that, now today the front door ( pvc ) is smashed.
i have had the police in attendance today to see if they can help with the matter, there is a dog unknow as to the nature of the dog and bread.
the tenant was not at home but the police new where she was, so i was taken round to her mothers address and i served her with the section 21, and told her with the police officer’s listening that 1 her lease was up and would not be renewed 2 a section 21 had been in place for some 2 months and 1 day.
question is the section 21 still good as it could not be passed to the tenant as she would not open the door or answer the phone & the letter box taped up.
so help help please as to what i can do.
sorry re above it was 2 months notice served in the corect manner not 2 months & 1 day as i said
It sounds as if you have done all you can to serve the notice – and have police witnesses! Personal service on the tenant herself is the best method of service.
Note that my new book ‘Your Complete Guide to Section 21′ will be helpful to you and answer all these questions – it is out soon : http://legalkits.co.uk
I have a tenant who is not paying his rent and I’m to serve him with a section 21 as he didn’t sign the AST even though I kept on at him to (If he had I would have served a Section 8 and got him out quicker) I will give him the two months notice but this “eviction” will be still inside the fixed year term of the tenancy should he suddenly turn up to court with the AST. Does this effect the section 21 and will it go through in two months??
This is one reason why it is NOT a good idea just to send a tenancy agreement out to a tenant to sign on an open ended basis.
It would be wise to send the tenant a letter withdrawing the offer of a new tenancy before you serve your section 21 notice.
There is no reason why you should not go down the s8 route if he is in arrears of rent. This is not dependent on a tenancy agreement being signed.
Can I send out both a section 8 and 21 to cover myself?
Thanks for the info.
No reason why not.
We have both notices for members of my Landlord Law service together with covering letters you can use.
There is a special letter for when you serve both notices together. http://www.landlordlaw.co.uk/forms
Information about our services for landlords are here http://www.landlordlaw.co.uk/information-about-landlord-law-landlords