Although we are told that section 21 will be banned by the end of the year, we may as well be clear about the rules before then. And people are often muddled about when the notice can be served.
Section 21, you will remember, is the section of the Housing Act 1988 which provides a no-fault ground you can (at the moment) use to evict your tenant.
However, if you know you want to use section 21, and provided you follow the rules, then serving it before the end of the fixed term can be a good idea.
Section 21 notices – the rules
Section 21 notices
- Must give the tenant at least two months’ clear notice
- Cannot be served during the first four months of the initial tenancy, and
- Cannot be used before the fixed term has ended.
- Plus the landlord must comply with all the various pre-requisites (which we are not discussing in this post – which is just about the timing of service of the notice)
The important thing to remember is you cannot use your section 21 notice to shorten the fixed term. So, as the notice period is a minimum of two months, there is not a lot of point in serving it more than two months before the end of the fixed term.
What about break clauses?
If you are anxious to use section 21 to evict your tenant as soon as possible, it is worth checking your tenancy agreement to see if there is a valid break clause. If there is, then you may be able to end the tenancy early using this.
A valid break clause must be clear and must not favour the landlord (i.e. if the break clause just allows the landlord to end the tenancy early, it will be invalid).
It has been held that service of a section 21 notice alone can be sufficient to activate a break clause, but to make things clear, it’s best to send a specific notice to the tenant first notifying them that the break clause is being activated (making sure you comply with any instructions set out in the clause). Your section 21 notice can then be served.
If there is no break clause
Then the best you can do is to serve the notice not less than two months before the fixed term ends. So long as this is after the initial four month prohibition, it will allow you to start your proceedings (assuming the tenant has not already vacated) as soon as the fixed term has ended, wasting no time.
If the fixed term is an initial fixed term and is for six months only, you will not be able to get your notice to end exactly at the end of your fixed term as you will need to allow time for service.
When I did eviction work, I used to allow a week for this, Which meant the tenant could not pop up at court claiming that the notice period was less than the required two months, eg due to the fact that an intervening weekend or bank holiday cut into the notice period. Not something you will want!
But yes, you can serve your section 21 notice before the fixed term has ended.