Section 21 Notices
Occasionally
the law will throw up a situation that, although it is
technically correct, can cause chaos in
practice. The Civil Procedure Rules allow courts a
degree of discretion, but not when a rule is mandatory
or a piece of legislation is framed in such a way that
it has to be followed to the letter.
One example of this is
the provisions of the Housing Act 1988 regarding
Assured Shorthold Tenancies (ASTs) and covering the
eviction of tenants, where many landlords and agents
have fallen over. Basically, it's all because of one
little word - AFTER.
The rental market in the UK has enjoyed a sustained
period of stability thanks to the introduction of
Assured Shorthold Tenancies (ASTs). These provide a
minimum letting period for the tenant of six months with
the ability for the landlord to evict the tenant
after that period without giving a reason, such as rent
arrears or misbehaviour, provided certain detailed rules
are followed.
Among others, these
require a minimum of two month's notice for
possession being given to the tenant. This is fairly
straightforward where the notice is served during the
contractual period of the tenancy - the Fixed Term.
When the fixed term ends
tenancies automatically become Periodic Tenancies
unless a further fixed term is agreed between the
parties and a new agreement signed (the period being
determined by the rent payment times - e.g. monthly if
the rent is paid monthly)
It is notices served
after the fixed term has come to an end when the tenancy
becomes periodic where it all appears to be going
horribly wrong.
Section 21 Notices to
Quit - Fixed Term and Periodic Tenancy Notices
Section 21(1)b and
Section 21(4)a
The Chairman of the
London Association of District Judges says 7 out of
10 of these notices are being thrown out of court
because they are wrong.
This of course is very frustrating (and expensive if
rent is owning) for landlords / agents as the whole
process must then be started again giving a minimum 2
months' notice, which in practice may be nearer three
months needed to comply with the exact dates.
If Landlords / Agents are to effectively serve valid
notices extreme care is needed to get the dates right,
otherwise it will pay you to use a solicitor to do this
job for you.
The date on which the notice requires possession to be
given must be at least 2 months after it was served. The
Fixed Term Notice (Section 21(1)b) can be served
at any time during the fixed term (from just after the
agreement is signed up to and including the last day of
the fixed term) but must not require possession during
the fixed term.
In the case of the Periodic Notice (Section 21(4)a)
the notice given must be a minimum of 2 months,
ending on the last day of a tenancy period (the date
before the rent day) specifying that possession is
required AFTER that day.
If the tenancy agreement provides for notice to end it,
this notice must also comply with that notice.
So, for example, if the rent for a 6 month AST is paid
on a calendar month basis (most are) commencing 4th June
2006, the rent period is 4th June to 3rd July.
After 6 months the tenancy becomes periodic - 4th
December 2006 - without further action from either
party.
If today (11th July 2007) we wish to serve notice on
this tenant we use a Periodic Notice (Section 21(4)a)
with a notice date of 3rd October 2007. The notice
should specify that possession is required AFTER this
date.
Therefore, in order to give 2 clear months' notice on
this periodic tenant we need to actually give 12 weeks
notice (11th July to 3rd October).
To be valid the notice must to make it clear to the
tenant that possession is required AFTER 3rd October
2007.
As a "catch all" safety net the
Free LandlordZONE Section 21 Notice (see: Agreements
and Notices) has the following phrase:
"...the landlord requires possession after the date
stated in this notice or at the end of the period of
your tenancy which will end next after the expiration of
2 months from the service upon you of this notice"
This latter phrase has been held to be effective on
appeal (Lower Street Properties v Jones (1966) but many
judges are not aware of this, so be prepared to point it
out.
Serving Notices:
You can serve a Section 21 Notice in person or by post.
Courts will recognise postal service - the date of
postage and the day the letter would normally arrive.
You should send by registered post or recorded delivery
and allow a minimum of 3 working days for the notice to
arrive.
Possession
Proceedings: Before you can start possession
proceedings you must wait until the notice has expired -
the date you have given in the notice. You will need to
obtain the appropriate forms from your local county
court, or the Court Service Website -
Court Service website
- N5 and N119
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
Never rely totally on this information which relates primarily to England & Wales. Before taking action or not, seek expert advice with the full facts of your case and all documents to hand.
