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14/7/25 8:13 pm
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With the impending implementation of the Renters’ Rights Act, Section 21 evictions are now on borrowed time.
Landlords can still use Section 21 to evict a tenant, but we don’t know for how long. The government has indicated that the new Act is imminent, but the precise timetable remains uncertain.
This article applies primarily to England and is not a full interpretation of the law. Always seek professional advice before making or not making decisions. Use this guide as the starting point for your research, not an endpoint.
Many landlords are anxious to serve S21 notices ahead of its abolition, but rushing into it is when mistakes are made. Some landlords want to sell up, while others simply want to rid themselves of a bad tenant before the new law comes in, which will make evictions far more difficult.
As the new legislation gets nearer, tenants under threat of eviction may be tempted to resist eviction in the knowledge that evictions will become difficult under the new legislation. This, rather than accept a notice and leave, which leaves landlords with no alternative but to go down the court action route.
The “no-fault” route to possession is littered with technical trips and traps. The courts routinely throw out claims for the smallest mistake in the documentation, causing months of delays and extra costs. Judges have little sympathy for landlords or their agents if the paperwork isn’t perfect.
Before serving a Section 21 notice it is vital you make sure you have complied with all the prerequisites – see below. To serve a Section 21 notice correctly in England, use the prescribed Form 6A and provide tenants with at least two months' notice, allowing time for the notice period to commence. You can serve the notice by post (recorded delivery), hand-delivering it, leaving it at the property, or sending it electronically if the tenant agreed to this method in the tenancy agreement.
In practice it’s prudent to serve electronically and by post. Crucially, always retain proof of service, such as a signed acknowledgement, certificate of postage at the post office or a witnessed hand-delivery.
A Section 21 notice is primarily used to regain possession after the fixed term ends, i.e., during a periodic tenancy with no fixed end date. A Section 21 notice served during the fixed term will only remain valid if it expires after the fixed term ends. For example, with a 6 months’ assured shorthold tenancy (AST) at least 4 months must elapse before serving a S21 notice.
Over the years and through several acts of parliament the government has piled on condition after condition onto Section 21. There are so many hurdles that landlords or their agents must jump, and just one missing certificate, one outdated form, or one unchecked licensing requirement and your possession claim is rejected – you’re back to square one re-serving the 2 months’ notice.
If you’re going to use section 21 in these final days, you need to know all these possible trips and traps.
The Section 21 notice must use the prescribed Form 6A with a correct notice period (currently two months) allowing time for delivery when applying to the court for a possession order. Using the wrong form without the prescribed information or getting the dates wrong will invalidate the notice.
Before marketing any AST tenancy, you should already have an Energy Performance Certificate (EPC) available for the property and the tenant should receive a copy at the outset.
As with all the prerequisite documents as set out below, you need some form of proof that they were delivered. This is a crucial step as the tenant can stymie your claim simply by saying they never received any one of the important documents.
It’s a good idea to include as many of these documents as possible with the tenancy agreement or have a separate signature form which acknowledges all the documents are received by the tenant.
If the property is supplied with gas for heating or cooking etc, then you must have a Gas Safety Certificate supplied after an inspection by a Gas Safe Registered engineer. This should be served before the tenancy starts and updated annually.
Regulation 36(6)(b) of the Gas Safety (Installation and Use) Regulations 1998 requires this service before the tenancy starts, but there was an appeal court case in Trecarrel House Ltd v Rouncefield [2020] which ruled that late service of a valid gas safety certificate may allow a valid Section 21 to be served, but the position remains uncertain and is still being debated.
You must serve the tenant with the latest (current) version of the government’s “How to Rent” Guide. Section 39 of the Deregulation Act 2015 says landlords or agents must serve the correct version in force at the start of the tenancy. The guide must be served again if the version changes, each time the tenancy is renewed, or if it goes into a periodic tenancy, which is classed as a new tenancy. Many landlords trip on this one because they continue using an old guide or fail to re-serve the latest one when a tenancy is renewed.
For a comprehensive list of dated versions, including those before 2019, you can refer to the official GOV.UK How to Rent guide page
In England there are restrictions on taking deposits. There’s a cap of five weeks’ rent (or 6 weeks of the rent is over £50,000). It's very important the tenancy deposit is protected within 30 days of taking it.
It must be protected in a government approved scheme, and the prescribed information must also be served on the tenant within 30 days. Any delay will prevent a valid Section 21 notice being served until it is remedied, and delay also exposes landlords to a penalty claim of up to three times the deposit amount.
The tenancy deposit prescribed information is a mandatory requirement. It's a legal document provided by the scheme for landlords and letting agents to use, to be served on tenants. It details the deposit amount, the property address, the protection scheme used, the landlord/agent contact details, procedures for the return of the deposit and information about disputes. It’s vital that landlords retain proof of delivery of this form.
There have been many court cases over the years concerning tenancy deposits with Superstrike Ltd v Rodrigues [2013] being a landmark case.
Section 75 of the Housing Act 2004 blocks service of section 21 if a property requiring an HMO licence, or one subject to selective licensing, isn’t licensed. If the property is an HMO or it’s in a selective licensing area, it will need a licence from the local authority. No licence means no Section 21 possession order full stop - judges will not bend to this.
An HMO (House in Multiple Occupation) is a rental property with three or more unrelated people, i.e., not from the same household, but who share facilities like a bathroom, kitchen, or living areas. These can include shared houses, bedsits, hostels, or converted flats where residents from different households share communal spaces or facilities.
The Tenant Fees Act 2019 in Section 17 states that a Section 21 notice is not valid if the landlord or agent took a prohibited fee payment, or failed to refund one. In England most fees traditionally charged by landlords and letting agents to tenants, are banned.
Fees for referencing, inventories, or general admin fees are no longer allowed, restricting payments to such charges as rent, capped tenancy deposits, a capped holding deposit (one week’s rent), payments for a key, late rent penalties, and utility bills.
Section 33 of the Deregulation Act 2015 introduces a restriction on serving a Section 21 notice when there are serious outstanding repair issues. This is to prevent so-called “revenge or retaliatory evictions”.
Where a tenant has made a written complaint to the landlord about a genuine disrepair issue, such as non-functioning heating in cold weather, and the landlord does not respond adequately within 14 days, by carrying out the repairs or putting in writing their proposals for the repairs, in a reasonable time, the tenant can approach the Environmental Health department of the Local Authority. They will inspect the property, verify any issues, and if necessary serve an Improvement Notice or Emergency Remedial Action Notice on the landlord.
This will delay for 6 months the landlord’s ability to serve a valid Section 21 notice. The landlord must then carry out the repairs specified by the Environmental Health department by the deadline given.
If your answer is “no” or I can’t prove it, don’t serve a Section 21 notice until you have rectified your situation, otherwise your possession claim will invariably fail.
Section 21 is a powerful tool which remains available until the Renters’ Rights Bill passes into law. But it only works for landlords and agents if the prerequisites above have been meticulously complied with.
The courts (judges) are unbending in their application of the rules. With the Section 21 abolition looming, the message to landlords and their agents is: get it right first time, or you risk losing your last chance to use it.
Suzanne Smith of the Independent Landlord says, “the transition arrangements of the Renters’ Rights Act make an exception for those Section 21 notices that have already been served before the Commencement Date. The notices will continue to be valid, and the tenancy will continue to be an assured shorthold tenancy, for a short period of time after the Commencement Date.”
Once the Renters’ Rights Bill becomes law, possession claims will get much more difficult. Section 8 is an adversarial system where landlords or their representatives must prove certain extended grounds for eviction and convince a judge in court. In many cases this is far from easy.
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