This is a handy check list for use to help you ensure you are serving a valid section 21 notice.
Section 21 of the Housing Act 1988 (as amended 1996 & 2004) provides a means of re-gaining possession of a residential property in England & Wales. Other UK jurisdictions are similar but there are important differences, particularly in Scotland.
These guidelines are based on English law and are not a definitive interpretation of the law, every case is different and only a court can decide, so if in doubt seek expert advice.
Section 21 gives a mandatory right to possession and landlords do not need to give a reason for requiring possession.
The only way tenants can successfully challenge an s21 possession claim is if the landlord, agent or solicitor has made a technical error in the application and the pre-application rules have not been followed correctly. For example, if you serve a section 21 notice when the deposit has not been protected, the s21 notice would be invalid.
Some important points to remember before serving a section 21 notice:
1. Make sure you have a written tenancy agreement which spells out the contract terms of the tenancy, including the length of the term, any break terms*, the rent amount and when this is payable.
2. Read the agreement carefully to make sure you comply with the all its terms, for example, using approved methods of validly serving notices, tenancy end dates etc.
3. The section 21 notice can be served at any time during the tenancy but NOT before the tenancy agreement has been signed.
4. If you have taken a deposit, the deposit must be protected** (within 30 days of receiving it) and the prescribed deposit protection information (s213 notice) served on the tenant as per s213 of the 2004 Housing Act (as amended by the Localism Act 2011) BEFORE a valid s21 notice can be served.
5. Download the prescribed information from whichever deposit protection agency’s website you signed up with, and serve it on your tenant within 30 days, making sure you receive PROOF of SERVICE.
6. Where the rental property comes under the remit of a licensable House in Multiple Occupancy (HMO), you must have complied fully with the Housing Act 2004 legislation regarding licencing of an HMO, and provide documentary evidence when applying to the court for a possession order.
7. Where the tenancy is a statutory periodic tenancy, the s21 notice comes under section 21(4)(a) of the Housing Act 1988. In this case the notice expiry date should be the last day of a tenancy period which is a minimum of 2 months from the date of service. These notices should include a saving clause (Lower Street Properties v. Jones (1996), Elias v. Spencer (2010) and Spencer v. Taylor (2013), where the notice states the expiry date, and words to this effect: “or after 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 has been held on appeal to mend a notice with an incorrect end date.
8. The Accelerated Possession process (Form N5b) does not normally require a court hearing. The whole process will be completed by the court (judge) assessing the documentation you present. If all is in order a possession order will be made. If there are other complications, such as a missing letting agreement, then you will need to use the Standard Procedure (Form N5). This will require a court hearing. The standard procedure may take longer but it has the advantage that you can add a money claim if necessary.
*Any notice served under a break clause in the tenancy must comply with section 21 (1)(b) of the Housing Act 1988 AND the provisions of the break clause in the tenancy. Courts will always interpret the terms of a break clause very strictly.
**If the deposit has not been protected within the 30 day period you cannot serve a valid s21 notice unless you REFUND your tenant’s deposit. Likewise, if the prescribed information (s213 HA2004) has not been served on time then a valid section 21 notice cannot be served until the information is served correctly. (Complying late will not avoid you being liable to a fine).
Check List – Serving a Valid s21 Notice:
1 – Complied with the terms of the tenancy agreement and s21 of the Housing Act 1988 when serving s21.
2 – Complied with the deposit protection rules – s213 Housing Act 2004
3 – Obtained proof of service of deposit notice and s21 notice
4 – Complied fully with the HMO licencing requirements Housing Act 2004
5 – Where the notice is served under a break clause, make sure the terms of the clause and s21 provisions are fully complied with.
6 – Allow ample time for the 2 months’ notice to expire before applying to court for a possession order. Two months is the minimum notice period, there is no maximum.
7- When applying to the court for a possession order, make sure you provided three copies of all the documentation needed:
• Tenancy agreement
• S21 notice with proof of service
• Deposit documentation with proof of service of 213 notice.
• HMO licence details, if appropriate
8 – Apply for a possession order at the court near the property or online at: https://www.possessionclaim.gov.uk/pcol/ All court guidance, forms and documents can be found here: http://www.justice.gov.uk
Processing a possession claim is not difficult, and you do not need legal training. It just requires due diligence – some homework on your part and careful attention to detail. This is a 3 stage process which may or may not need all three stages:
1 Serving notice
2 Applying for a possession order
3 Applying for a warrant of possession – court bailiff evicts.
By Tom Entwistle, LandlordZONE®
If you have any questions about any of the issues here, post your question to the LandlordZONE® Forums – these are the busiest Rental Property Forums in the UK – you will have an answer in no time at all.
©LandlordZONE All Rights Reserved – never rely totally on these general guidelines which apply primarily to England and Wales. They are not definitive statements of the law. Before taking action or not, always do your own research and/or seek professional advice with the full facts of your case and all documents to hand.©LandlordZONE® – legal content applies primarily to England and is not a definitive statement of the law, always seek professional advice.