Serving Section 21 Notices – Guidance for Possession Procedure

There are two types of Section 21 Notice:

s.21(1)(b) – for service during the fixed term – Fixed Term Assured Shorthold Tenancy

This is a 2 month notice which can be served on the tenant any time AFTER signing the agreement right up to and including the last day of the tenancy. You cannot seek possession until after the term ends, however early you serve the notice.

It’s a good idea to get a signed acknowledgement from the tenant making it clear that notice was served after the tenancy was signed, if you serve the notice on the same day as the tenancy is signed, otherwise serve it a day or two later, or indeed any day up to and including the last day of the tenancy term.

The principle behind serving early is that relations are likely to be very good at this stage and the notice will be accepted easily and with good faith.

If you have served the s.21(1)(b) more than 2 months before the term ended, it will expire when the term ends.

If you serve the s.21(1)(b) during the final 2 months of the term it will expire on a date after the term ends, after which possession can be sought.

s.21(4)(a) – for service after the term has ended – a Periodic Tenancy.

When the fixed term ends and where possession is not formally sought by the landlord the tenancy automatically becomes a periodic tenancy. This means that if rent is paid monthly the tenancy now runs month to month. The tenant can leave by giving just one month’s notice in writing, but the landlord still must give a minimum of 2 months’ notice.

The original agreement is still fully in force with all the terms still valid and enforceable on both parties. It’s very important to keep the original documentation in case possession proceeding are needed.

Serving a section s.21(1)(b) notice is straightforward as the notice is 2 months from the date the notice is served after which possession can be sought.

In the case of the s.21(4)(a) (Periodic) it’s different and more tricky. Get it wrong and you will find a court judge will throw it out and you’ll have to start all over again.

This notice must specify a date which is the last day of a tenancy period giving a clear 2 months notice to this date. In practice this usually means the tenant gets more than 2 month’s notice.

EG: 6 month AST tenancy starts 5th June 2006. Agreement is signed on the 5th of the month (Calendar months) therefore the last day of each tenancy period is the 4th of each month.

The fixed term of this tenancy would end on the 4th of December 2006, after which day possession could be sought if the s.21(1)(b) was correctly served during the fixed term.

However, the tenant still being in occupation at the time of this writing (15 August 2007) a s.21(4)(a) (Periodic) is required.

The next tenancy period end date is therefore the 4th of September 2007. Two months notice from that date would be the 4th of November 2007. Therefore, for example, a notice served today would need to specify the 4th of November as the notice date, after which possession will be sought.

August 2007 - 4th / 5th (15th - notice served)                

September 2007 - 4th / 5th                                   

October 2007  - 4th / 5th               

November 2007 - 4th notice day

Serving The Notice:

The landlord must serve the notice (not his/her agent). If the agent serves the notice on the landlord’s behalf it will more than likely be thrown out of court.

The notice can be served personally (by hand) or by 1st class post either get proof of posting or send recorded deliver and allow some time for deliver (3 days ?) in your dates. Proof of posting is usually best as individuals sometimes refuse to sign for recorded delivery communications.

Summary:

A. s.21(1)(b) Served > 2 mths. before term ends: expires when term ends.
B. s.21(1)(b) Served during term's final 2 mths: expires 2 months after service.
C. s.21(4)(a) (Periodic) Served after term ends: expires when first periodic tenancy period ends following 2 mths after term ends. Example: let for 6 mths starting on 1 Jan. Term ends 30 June. Notice served 15 July. Notice expires after 30 September.

Our free Section 21 Notices combine both 21(1) and 21(4) – take great care to ensure that you indicate which one you are serving and get all the details exactly right.

see:
http://www.landlordzone.co.uk/agreements.htm

Note: never rely totally on these standard answers. Before taking action or not, always seek professional advice with the full facts of the case and all documents to hand. LandlordZONE.co.uk