Expiry of Section 21 Notice – I have served a Section 21 (s21) Notice on my tenant but don’t wish to start proceedings immediately. Can I wait without the notice expiring?
Once a Section 21 notice has been served correctly it continues indefinitely, until such time as the tenancy is ended, either by the tenant giving notice and surrendering, or when a new tenancy agreement is signed for a further fixed term.
To terminate an Assured Shorthold Tenancy in England or Wales, at the end of the fixed term, the landlord should serve a Section 21 Notice 21(1)(b) (notice requiring possession) giving the tenant a minimum of two months’ notice.
The notice should name all joint tenants and ideally served on each tenant. Allow at lease 3 working days when notices are posted. You must obtain proof of service.
Providing the landlord serves the S21 notice correctly and all the paperwork is in order, including the letting agreement and, since 6th April 2007, the Tenancy Deposit Scheme requirements, a possession order is assured.
The notice can be served at any time during the fixed term, from day one (after the tenancy has been started) right up to and including the last day of the tenancy.
However, you cannot end a tenancy in under 6 months (during the fixed term) with a S21 Notice, and where the notice is served with less than 2 months to go on a tenancy (can be up to and including the last day of a tenancy), the tenant can stay on beyond the end of the fixed term until the 2 months’ notice period expires.
Possession cannot be obtained during the fixed term unless the tenant is in breach of one or more of the terms of the agreement, as specified in the Housing Acts “Grounds for Possession”. In this case a Section 8 Notice (S8 Notice) is required which states the specific grounds for possession being claimed.
At the end of the fixed term the Assured Shorthold Tenancy will automatically become a statutory periodic tenancy. If rent is paid monthly, this means a month to month tenancy. In this case a periodic notice Section 21(4)(a) must be served.
In this second case the notice must give 2 full months’ notice ending on the last day of a tenancy period, AFTER which possession is sought. Therefore, in practice the tenant often gets more than two months notice, sometimes nearly three.
For example, if the fixed term tenancy ended on the 25th of August, the periodic tenancy would run from the 26th of the month and end on the 25th, and September, October etc. Suppose the landlord serves notice on the 15th of September. The periodic notice would end on the 25th of December, AFTER which possession could be sought.
Once the notice period ends the landlord (or his/her agent) applies to the court for possession using the court procedure for the possession of a dwelling house.
– Agreement & Forms – Section 21 Notices and Notes on Serving
– What is a Section 21 Notice?
– Expiry of a Section 21 Notice
– Section 8 Notices
– Section 8 Procedure
– Gaining possession of a privately rented property let on an assured shorthold tenancy
By Tom Entwistle,
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