Here Tessa Shepperson, former solicitor and property law specialist through LandlordLaw.co.uk summarises the new Section 21 rules (1988 Housing Act) for the residential possession process in England.
There have been quite a lot of changes to Section 21 over the past 12 months many people (landlords and letting agents) are still very confused over how the notices should be drafted and what the notice period should be. So here is a brief outline.
How these rules apply in England and Wales – the new rules which came into force on 1 October only affect English tenancies. For Welsh properties you need to continue to use the old rules until such time as new Welsh legislation comes into force.
Any reference below to the new 1 October rules apply only to tenancies of properties in England.
Section 21 pre-requisites
You cannot serve a valid section 21 notice if:
- You have taken a deposit and not protected and/or served the prescribed information and/or
- You have failed to obtained a license for an HMO property which requires one
If the tenancy was in England and started or was renewed on or after 1 October 2015 you must also have served on your tenant (and you should get proof of service for all these:
- an EPC
- a Gas Safety Certificate, and
- the latest version of the Government’s “How to Rent” Guide.
Plus you cannot serve a section 21 notice if your Local Authority has served one of 3 specified notices (the most important being an improvement notice) on you within the past six months in respect of the poor condition of your rental property.
Also, if the tenant complained about the issues covered by the notice prior to this – any Section 21 notice served since the complaint and before the Local Authority notice was served on you, will also be invalid.
Notices and time limits – tenancies starting after 1st October 2015
There are different rules for older tenancies and depending on whether your tenancy started or was renewed on or after 1 October 2015.
NB ‘renewed’ does not include tenancies which are just continuing as a periodic where the landlord did not serve some form of renewal notice or signed a new tenancy agreement. So, if the tenancy started before 1 October 2015, and the fixed term ended after 1 October 2015, and then continued as a periodic, use the older rules.
If the tenancy started or was renewed on or after 1 October 2015 you need to use the new prescribed Section 21 notice form (6a)
The notice period must not be less than two months and must not end before the end of the fixed term (if this has not ended at the time you served your notice)
If this is a periodic tenancy where the period (rent payment period) is more than monthly (e.g., a quarterly or six month periodic tenancy), then the notice period must be at least one full tenancy period.
The notice period does not have to end on a particular day in the month, as was required under the old rules – you just need to make sure that the notice period is sufficient – minimum of 2 months.
the tenancy was started or renewed before 1 October 2015
(Including tenancies where there is a periodic tenancy which started after 1 October 2015)
You need to use the old rules, but under the decision in the case of Spencer v. Taylor, in most cases you will not need to specify a date which is “the last day of the period of the tenancy”.
So your notice will need to:
Give the tenant not less than two months’ notice, and
Not end before the end of your fixed term (if you are serving the notice before the fixed term has ended).
You will only need to worry about the “last day of a period of the tenancy” rule in two circumstances:
If your tenancy never had a fixed term – i.e. was periodic from the start, or
If there is a ‘contractual’ periodic tenancy – this is when the periodic tenancy is there because the tenancy agreement says it is a periodic tenancy.
If you are in this situation most Section 21 notices use a comprehensive “saving clause” which will protect you if you get the date wrong.
Using section 21 notices
If the new, post 1 October 2015, rules apply to you – you have a time limit during which you must use your section 21 notice. After that it will lapse and you will need to serve a new one.
This time limit window is normally six months. However if the rules require you to give more than two months’ notice, then you have four months after the date given in the notice to start your possession proceedings. After which, again, you will need to serve a new notice.
If the old rules still apply to you, then your Section 21 notice will continue indefinitely until the tenancy ends, which will normally be when you give the tenant a new tenancy agreement or renewal form.
After 1 October 2018
On this date the new rules will apply to all ASTs, even for very old tenancies which have been running as a periodic for many years.
Service of Section 21 Notices
Don’t forget that it is essential that you are able to prove service of your notice – otherwise if you bring possession proceedings and the tenant denies receipt you will be in big trouble and may lose your case.
This is a very brief outline article. If you are unclear about anything, you should take legal advice.
See also – LandlordZONE® – New Section 21 Rules here©LandlordZONE® – legal content applies primarily to England and is not a definitive statement of the law; always seek professional advice. Legislation changes, so check dates on these articles. If you have questions go to the LandlordZONE® Forums