The wrong notice has been served or it is missing essential information
(Note that I am not looking at expiry dates in this post, this will be looked at later).
The problem with drafting section 21 notices is that
- There is no prescribed form and
- The criteria set out in the statute is quite detailed
It is a great shame that there is no prescribed form, as if there was I think this would have prevented many of the problems that people have had with this notice over the years. Setting out detailed requirements and then not giving a standard format is asking for problems.
However sometimes the problem is that people are simply using the wrong notice.
The wrong notice
One problem that happens sometimes (not often but occasionally) is due to the imprecise way that people talk about serving a notice to quit when they actually mean a section 21 notice.
In a sense a section 21 notice IS a ‘notice to quit’ in that it is asking the tenants to leave or ‘quit’ the property. However a notice to quit is a special form of notice used for older tenancies and tenancies which are not assured or assured shorthold tenancies.
The legislation specifically says that notices to quit are of no effect here, so if you serve one, your tenant is entitled to ignore it. It will certainly not entitle you to an order for possession under section 21.
Sometimes also people come unstuck when they download free forms from the internet. For example there are different forms used in Scotland and some websites do not make this clear. If you use a Scottish form for an English property, again it will not be effective.
As this legislation has been in force for some time now, we have probably had claims involving most if not all of the criteria set out in the act. Most of the challenges to section 21 notices involve the expiry date (which I will look at later). However a notice was once found to be invalid because it failed to say that possession was claimed under section 21 (required by s21(4)).
A tenant’s attempt to defend on the basis that the notice was not signed failed though, as this is not something required by the act.
I am not aware of any cases on any other missing information, but you should still be careful (if you are the landlord) to ensure that all tenants are named (including those who have moved out – so far as the tenancy agreement is concerned, they are still tenants), and the property correctly described.
However the act specifically says that one of joint landlords can give notice on behalf of them all, so the notice is probably valid if only one is named.
If you want to know more about section 21 you will find a lot of information in my ebook Assured Shorthold Tenancies : Your complete guide to section 21.