Section 21 of the Housing Act 1988 is the section which says that you can evict your tenant, without giving a reason, provided you serve the proper form of notice.
It sounds like quite an easy eviction procedure, and in a way it is. However it is not straightforward and there are quite a few misunderstandings. Here are five for you:
1. You can issue eviction proceedings during the fixed term.
Not true! The the start of section 21(1) it says “..on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy..” meaning that you can’t use the section before this.. If you do the Judge will just chuck the case out. I have known of cases where this has been done (not my cases).
2. The notice period is always two months.
Not true! Two months is just the minimum notice period. Usually it needs to be more. For example if you serve the notice a the start of the fixed term it cannot end until the fixed term does, which could be many months away.
Then if you serve the notice after the fixed term has ended, it has to end at the end of a ‘period of the tenancy’ which in some cases means that the notice period is nearly three months.
Then you have to allow time for service. For example if you serve it by leaving it at the property (eg by inserting it through the letter box) it won’t be deemed served until the next working day.
3. The deposit can offset against rent arrears rather than being protected.
Not if you want to bring a claim for eviction under section 21. I got caught out by this one once. Section 215(1) of the Housing Act 2004 says
If a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when—
(a) the deposit is not being held in accordance with an authorised scheme, or
(b) the initial requirements of such a scheme (see section 213(4)) have not been complied with in relation to the deposit.
The wording is fairly straightforward and does not appear to contemplate the possibility of anything else being done with the deposit.
If you want to evict your tenant under s21 it is best to play safe and protect the money. Otherwise you risk the Judge chucking out your case. You can always claim against the deposit when the tenant leaves.
** Note that the law on tenancy deposits has changed since this post was written in 2011, please check out a more recent post**
4. The accelerated possession procedure is really quick.
This is true only if three months or more comes within your definition of ‘quick’. You can read my urban myth about this.
5. You have got to issue eviction proceedings as soon as the notice period expires.
Not true! The notice has an indefinite life span until the tenancy ends. Which it will do if you give the tenant a new tenancy agreement. Otherwise you can use it years after it was served. See this urban myth.
** Note that the law on section 21 has changed since this post was written in 2011, please check out a more recent post**
So there you are. Five misunderstandings.
If you need to draft up a s21 notice
- Possession notices are available on my Landlord Law site
- Find out more about eviction generally >> here
Photo by woodleywonderworks