Urban Myth – You have GOT to evict a tenant once the s21 notice expires

This post is part of my urban myths series. You can see the rest of the series here.

I sometimes get asked by landlords about how long a section 21 notice lasts. Questions include:

1. Can I let the tenant stay on after the end of the notice period?
2. If I allow the tenant to stay on will I have to serve a new notice?
3. How long does the section 21 notice last for?

The answers to these questions has changed a bit since I first wrote this post in 2010. Let’s take a look at them.

What’s the same

You can certainly let your tenants stay on after the end of the notice period. Serving a Section 21 notice is effectively just a notice of intent. It does not change the tenancy and does not commit you to anything.

Its significance is that, if you get your notice right, and then issue proceedings for possession, the judge has no alternative but to grant it.

But if you don’t issue proceedings for possession, nothing happens. The tenancy continues as before.

What’s different

The difference is that in October 2015, the Deregulation Act changed the rules about the life of a section 21 notice.

Before then, a section 21 notice lasted as long as the tenancy did. So, it would end if a new tenancy agreement was given to the tenants (or if the tenants moved out or the tenancy was ended in some other way) but not otherwise. Meaning that a Section 21 notice could last for years and years.

Often, landlords would serve a Section 21 notice right at the start of a fixed term just in case they needed it one day. This is now forbidden, and notices cannot be served during the first four months of the original tenancy start.

In the past, I have known cases where a landlord was able to evict a tenant based on a section 21 notice served many years before. Judges did not like making the possession order, but under the rules, they had no choice.

However, now the time you can use a section 21 notice is limited to (for most notices) six months after the date the notice is served or, if the notice period is more than two months, four months after the date in the notice.  This is known as the ‘use it or lose it’ rule.

So, if you are going to use your Section 21 notice to evict your tenants, you need to get on with it.

Allowing tenants to stay

I often get asked by landlords what they have to do if they agree to allow tenants to stay on after service of a section 21 notice.

The answer to this is ‘nothing’. You don’t need to ‘withdraw’ the notice or do anything formal. As I said earlier, effectively a Section 21 is a notice of intent, but it does not commit you to anything.

If you decide not to evict, then just don’t issue court proceedings!

Note by the way that the section 21 rules now only apply in England, as since 1 December 2022, Wales has had its own, different, system.

Find out more

My Landlord Law service has a huge amount of information about section 21 and the correct way to use it (while we still have it).  Find out more on our eviction page.