Three common misunderstandings about using section 21

Although section 21 is due to be removed from the statute book at some point in the future, for now, it is still with us.

And likely to be used more now the problem with gas safety certificates has been resolved in landlords’ favour by the Court of Appeal.

This article looks at three common misunderstandings still common among landlords and their agents:

1 A section 21 notice will be invalidated if you accept any rent after it has been served

This harks back to the old ‘Notice to Quit’ and forfeiture rules.

A Notice to Quit (which cannot be used, by landlords, for assured and assured shorthold tenancies) actually ends the tenancy if used in the right circumstances. However, if you then accept rent you can resurrect the tenancy, meaning that you will have to start again.

Section 21 notices are different. They do not actually end a tenancy. What they do is ensure that a Judge cannot refuse to make an order for possession – so long as the section 21 notice has been properly drafted and served, and provided there are no legitimate defences.

Accepting rent will make no difference. So landlords can, and indeed should, accept rent.

2 A section 21 notice must be served on a specific day in the month

People often seem to assume this. But actually, the only rule about the time of service is that (in England) you cannot serve a section 21 during the first four months of a new tenancy.

However, apart from that, it does not matter what day in the week or the month that you serve your notice, or whether you serve it before or after the end of the fixed term.

The important thing is the notice period that you give and whether it is sufficient.

Your section 21 claim won’t be chucked out of court because you served the notice on the 21st of the month rather than the 22nd. However, it will be chucked out if your notice period is only one month and 27 days.

It needs to be a minimum of 2 months (sometimes longer) and I would advise always giving a few days extra to take account of the ‘deemed service’ rules.

The main significance of serving your notice before the fixed term ends is that your section 21 notice cannot expire before your fixed term ends.  So there is little point in serving the notice more than two months before the expiry of your fixed term.

3 That a section 21 notice is a ‘Notice to Quit’

People often talk about section 21 notices as being a ‘notice to quit’ meaning that it is a notice asking people to leave.

However, a ‘Notice to Quit’ is a specific form of notice. It is quite different from a section 21 notice and works in a different way (as you can see from 1 above).

It cannot be used for assured and assured shorthold tenancies by landlords.

Find out more

There is a lot more to section 21 than this.  There are rules about the things you have to do first to be entitled to use section 21, the notice form you need to use, and the time period in which you must use it. The rules are also different now between England and Wales.

Landlord Law has a huge amount of help on section 21 including our section 21 guide which you can follow to make sure you are entitled to use it.  Find out more here.