The expiry date on the notice is incorrect
This is the number one big problem that landlords have with section 21 notices.
Its all the fault of the people who drafted up the act. It would have been so easy just to say that the landlord must give the tenant not less than two months notice, and leave it at that.
But no, they had to make it complicated. Which has led to thousands of landlords over the years feeling bemused as their claim for possession is chucked out by the Judge.
Here’s how it works:
1. If you are serving your notice before the fixed term has ended
Here the notice must not end before the end of the fixed term and must be for a minimum period of two months.
So lets say we a six month tenancy starting on 5 January and ending on 4 July.
- If the notice is served on 7 January it will be for nearly six months as it will need to end on or after 4 July
- If the notice is served on 4 July (and this kind of notice can be served any day up to the last day of the fixed term) it will need to expire not before 4 September.
Note that the precise expiry date is not critical – so long as it is not less than two months. So if the notice is served during the last two months of the fixed term, I generally give an extra few days to allow time for service.
This is the simplest form of notice where there is less to go wrong. If possible, serve your section 21 notices before the end of the fixed term, if you can.
By the way, the fact that you have served a section 21 notice does not stop the tenancy running on as a periodic after the fixed term has ended. In fact the notice does not change the tenancy at all, or end it – it just means that if you go to court, the Judge has to make an order for possession.
2. If you are serving your notice after the fixed term has ended.
This is where the problems tend to occur. The act says that the notice must state
that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required
So the date must be
- (1) the last day of a period of the tenancy and
- (2) not less than two months after the notice is served.
- Also note that the statute uses the word ‘after’ which is why this is also used on all professionally drafted section 21 notices.
What is the last day of a period of the tenancy?
Well, lets take our example. The fixed term will end on 4th July. As the rent is paid monthly, the fixed term will be followed by a monthly periodic tenancy which follows on immediately after. So the fixed term will end at midnight on 4 July and the new periodic will start at one second after than on 5th July.
The last day of a period of the tenancy therefore will be the 4th day of the month. So the length of the notice period will be somewhere between two and three months, depending when in the month the notice is served.
Weekly and quarterly periodic tenancies will run in a similar way except that the period will be a week or a quarter (i.e. three months).
It is important that the date is correct as is shown in the case of McDonald v. Fernandez. Here the period ran from the 4th day in the month to the 3rd, so the last day of a period was the 3rd. The notice however said “I give you notice that I require possession of the dwelling house known as [property address] on 4th January 2003”
The Court of Appeal held that this did not comply with the requirements of section 21(4) and so was invalid and unenforceable.
(Note that landlords wishing to evict their tenants using the accelerated possession procedure will now be able to use my do it yourself kit, after joining Landlord Law as an annual member).
Surely an s21 served in the fixed term does not need an expiry date?
You need to give an expiry date to your tenant in the notice, otherwise how can the notice period be two months or more?
It is possible to give a ‘no date’ notice to the tenant, but this type of notice gives a formula for working out the expiry date (I’ll be talking about this next week) rather than not giving any date at all.
21(4)(a) says a date has to be specified in the notice, 21(1)(b) does not. Therefore “I will be applying for possession of the property” should suffice for 21(1)(b) and should succeed providing the claim is not made to the court any earlier than 2 months after service.
I would extend that to say that the application to the court could be made before the end of the fixed term, but possession could not be granted before the end of the term – leading to the vague possiblity of a 6 month term actually being a 6 month term (instead of 6 months plus a month or so whilst the paperwork is sorted out)
@David Personally I think it unlikely that a Judge will accept a notice which has neither an expiry date or a saving clause – have you or anyone else had any successful claims using such a notice?
I did a separate post in this series about issuing proceedings before the end of the fixed term here http://www.landlordlawblog.co.uk/2011/10/19/accelerated-possession-proceedings-defences-2/ so can any comments on that point please go there.
Tessa, I’ve LOTS of experience of repossessions using S21 & fully agree with you last comment. I would argue that the law relating to S21(1)(b) is very clear in the need to be specific about a date after which proceedings could be taken.
The Courts certainly would try to protect a tenant by refusing to grant possession if the Notice failed to be specific (I.e. an expressed date) or at the least had a saving clause.
Landlords, don’t take the risk, belt & braces every time – remember, you go into Court as the big bad nasty Lanlord trying to evict the lovely nice tenant. Some Courts will do anything to avoid landlords getting possession, don’t give them the ammunition, do the Notice correctly in the first place.
Agreed Miles – landlords, when you are looking to evict a tenant it is NOT the time to try to be clever.
Whats that old military saying? Always get over heavy ground as lightly as you can. Believe it.
Those of us who do eviction work professionally will always be boring and do it by the book – because that is what the Judge will want. And our clients will NOT be happy bunnies if we lose them their case by being experimental.