The End of Section 21: What Happens Now?

By Tom Entwistle | LandlordZONE

The day of the long-awaited abolition of Section 21 “no-fault” evictions has finally arrived. With Royal Assent now granted to the Renters’ Rights Bill, England’s private rented sector (PRS) begins a new era — it’s one that will profoundly alter the balance of power between landlord and tenant rights.

But while the headlines focus is on the end of Section 21, the reality on the ground is a bit more complex. Thousands of Section 21 notices are still working their way through the courts and many of the provisions of the new Act won’t become effective until next year (2026) or even 2027. 

Some of the ongoing Section 21 claims will be upheld, some dismissed, and some will get bogged down in the kind of technical disputes that have long plagued all residential tenancy possession claims.

One recent Court of Appeal decision, Martyna Switaj v Adrian McClenaghan [2024], illustrates how tangled these cases can become — and why landlords must take nothing for granted.

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Note: even though the Renters’ Rights Act is now law in England, it is still possible to use Section 21. This will be the case until the day before the “Commencement Date” which will be the official date when it will no longer be possible to use S21 and the date when all Assured Shorthold Tenancies switch to Assured Periodic Tenancies (APTs). After the commencement date, if a served Section 21 notice expires, and the tenant hasn’t left the property, landlords will still be permitted to apply to the court for a possession order under Section 21 within three months of the commencement date. After that period there can be no further court applications made under Section 21. There has been no official notice yet of when the commencement date is to be, but it is thought this is likely in early 2026, possibly 1^stof April – watch this space.

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What did Section 21 do?

For nearly four decades, Section 21 of the Housing Act 1988 gave landlords the ability to regain possession of an Assured Shorthold Tenancy (AST) at the end of a fixed term, or during a periodic tenancy, without proving that the tenant was at fault for breach of contract. The process was relatively simple: serve a correctly drafted notice, make sure all the prerequisites had been complied with, wait the required period, and apply for possession if the tenant didn’t leave.

It was the foundation of the modern buy-to-let market – the Assured Shorthold Tenancy (AST). Landlords could let with confidence, safe in the knowledge that if the worst came to the worst and the tenancy turned bad, they’d be able to recover possession of the property. And recover it without a complicated court trial.

Over time, a series of legislative add-ons — deposit protection, gas safety certificates, licensing conditions, and the Tenant Fees Act 2019 (TFA) etc — turned that once-simple process into a documentary minefield. Each requirement became another potential tripwire for invalidating a notice. Nevertheless, diligent compliance with all the rules meant that possession could still be obtained based purely on form filling.

The Renters’ Rights Bill closes the door

Step forward into the new era, the dawn of the new Act, which finally abolishes the Section 21 route for new tenancies. Following a transition period stretching into next year for existing ASTs, possession will rely solely on the re-drafted Section 8 grounds, where landlords must prove cause: rent arrears, antisocial behaviour, landlord sale, or occupation. It inevitably means a court case if a tenant refuses to leave after notice.

In principle, that means more protection for tenants. In practice, it also means more expenses and uncertainty for landlords who are already struggling with increased regulation, higher interest rates, and longer court delays.

For now, though, many Section 21 claims are still ongoing. The courts will be dealing with them for months — possibly years — to come. And that’s where the example of a recent case is relevant.

Switaj v McClenaghan – A cautionary tale for landlords

The Switaj case reflects many of the difficulties encountered by landlords in the attempts to gain possession of a property. The complexity of the many rules to be complied with to gain a possession order leads to disputes like this one.

The case concerned an issue that has cropped up more than once since the Tenant Fees Act came into force in 2019 - can a landlord rely on Section 21 if they took a payment that was later deemed to be a prohibited fee?

The facts of the case:

• The tenant first signed an AST in April 2018, before the TFA applied, and paid two charges: an administration fee and a check-out fee.
• After the TFA’s commencement on 1 June 2019, new ASTs ensued in 2020 and 2021.
• In June 2023, the landlord served a Section 21 notice on the latest 2021 AST. The tenant defended the possession claim, arguing that because the earlier fees breached the TFA, the notice was invalid.

The tenant’s argument:‍

Under section 17 of the TFA, a landlord who has required a prohibited payment must refund it before serving a Section 21 notice. The tenant’s position was that the original 2018 fees had never been returned, so the notice could not stand.

The court’s decisions:

At the initial possession court hearing, the District Judge ruled in the landlord Mr McClenaghan’s favour, and a possession order was issued. The tenant appealed the decision.

When the case came to the Court of Appeal the judge disagreed. The court ruled that the payments were made under a tenancy that pre-dated the TFA and were therefore lawful when demanded. The later ASTs did not repeat or carry forward those fees.

Crucially, the Court held that a landlord only “requires” a payment within the meaning of the Act when they actively demand it after June 2019. Simply keeping a sum that was already paid under a pre-Act tenancy does not amount to a new requirement, the judge argued.

In short, historic fees don’t automatically taint future tenancies, provided the later tenancy does not replicate or rely upon them.

What does this mean for landlords?

The Switaj judgment gives landlords some breathing space — but only a small one. It should not be seen as a green light to ignore the Tenant Fees Act in the future.

If landlords have ever charged tenants administration, referencing, renewal, or check-out fees after 1 June 2019, they are definitely at risk should they have brought a claim already under Section 21, or may do so later under Section 8. Any prohibited payment still outstanding will invalidate a Section 21 or even a Section 8 notice until repaid.

Even if the payment was taken before 2019, landlords should be careful. Many tenancy renewals were simply “rolled over” using old tenancy agreements with old clauses still applying. If that’s the case, a court could find that the later tenancy did, in effect, “require” a prohibited payment.

The safe approach is simple: Check every clause against the TFA’s Schedule 1 list of permitted payments and repay any suspect fees. Even if technically they were lawful, a refund prevents argument and avoids the risk of an appeal, as in the Switaj case.

As with all things legal, documentary evidence and full compliance matters most, so all repayment receipts, tenancy agreements, deposit confirmations, and compliance certificates must be up to date before a notice is served.

The Switaj ruling shows just how evidence-specific these disputes are. Landlords who cannot produce a clear tenancy history — with dates, payments, and clauses — will struggle to persuade a court that their notice was valid. This is especially true when only the Section 8 procedure is available to landlords and their representatives.

There could be a pipeline problem

Because the Renters’ Rights Bill includes transitional arrangements, thousands of existing Section 21 notices will continue through the system, a system that has been acknowledged as overloaded and potentially will become even more overloaded when more Section 8 trials begin under the new Act.

Some of the ongoing Section 21 claims will be entirely valid. Others will fall foul of the many compliance technicalities involved. The most common of these will be:

• Failure to comply fully with the deposit protection rules: late registration, missing prescribed information, or tenancy swaps without instigating fresh protection.
• Energy Performance Certificates and gas safety records either missing, having expired or documents served after the tenancy began.
• Failure to provide the current version of the “How to Rent Guide”
• Licensing: serving a Section 21 while a property still lacked an HMO or selective area licence.
• Prohibited payments under the TFA.
• Failure to properly serve the notice as specified in the agreement or failure to get proof that the notice was served.

All these defects won’t just delay getting a possession order — they can nullify a claim entirely and in this new era Section 21 can’t be used. It won’t be possible to fall back on Section 21 to correct the paperwork errors.

For those landlords with ongoing Section 21 proceedings, a thorough review of the claim documents and an examination of the compliance file with a fine-tooth comb is highly advisable. Courts are taking an increasingly strict line on even the slightest technical invalidity issues.

Lessons from Swataj

If the Switaj judgment has a wider lesson, it is that the courts will interpret landlord obligations literally – to the letter of the law and to the evidence presented to the court. If the law says you must do something before serving a notice — protect the deposit, provide the “How to Rent” guide, return a prohibited fee — then you must do it.

There is little sympathy in the courts for “it’s near enough”. Judges expect a clear audit trail and, as landlord challenges become more complex, judges will be more willing to scrutinise the paperwork in detail.

This trend will only intensify under the new framework. When Section 21 is finally gone, every possession case will be contested on the merits, and every procedural defect will matter. Individual judges interpret things slightly differently, but they can’t ignore solid documentary evidence.

Life after Section 21

The abolition of Section 21 does not make possession impossible, but it will demand a much more methodical business-like approach. For 40 years, Section 21 has been the safety valve of the PRS. It gave landlords certainty that, if all else failed, providing they had complied with all the rules, they could recover possession without a protracted argument.

That certainty is no more. In its place comes a system that demands strong evidence, strict compliance, and far more patience if it comes to an eviction situation. Some say it is being made deliberately more difficult for private landlords to evict in order to ease the pressure on local authorities – their need to re-house.

Some will exit

Some landlords will exit the sector and indeed, many already have, or are planning to do so. The National Residential Landlords Association (NRLA) reports continued shrinkage in the sector as investors sell up in response to all regulation, taxation, and uncertainty under the new Act and in some cases because of the new investment needed to comply with the EPC regulations.

For those who remain, professionalism is the new mantra. The end of Section 21, some argue, marks the end of “amateur landlordism”. In the future, success in buy-to-let will depend on getting the paperwork right, understanding the legal framework, maintaining properties in good condition, providing safe and warm accommodation and maintaining good relationships with tenants. Many landlords do all these things already, but there are many who don’t.

Will landlords still have to comply with these niggly rules when using Section 8, under the new Renters' Rights Act?

The short answer is, yes — landlords will need to comply in full with existing regulatory legislation (such as the Tenant Fees Act 2019 (“TFA”) and other Acts and regulations) even when using the Section 8 route.

The statutory obligations are independent of the possession grounds. Even if a landlord serves a Section 8 notice under the Housing Act 1988 (as amended by the new Act), that does not mean other statutory duties go away. 

The Tenant Fees Act 2019 case is a good example. The landlord must not require a tenant to make a “prohibited payment” in connection with a tenancy.

Likewise, deposit protection rules, licensing requirements, gas safety, EPCs — these are independent duties. Failure to comply may impact the landlord’s position in a possession claim (including a Section 8 claim) or may give rise to other enforcement action.

The new regime puts extra emphasis on procedural correctness. With the abolition of the “no-fault” (S.21) route with the Renters’ Rights Act, more scrutiny will fall on the grounds under Section 8. The courts (and the legislation) are making it clear that simply citing a ground isn’t enough: the landlord must be able to meet all the pre-conditions. For example, the guidance to the Renters’ Rights Bill - “Guide to the Renters’ Rights Bill” - states that landlords must use a Section 8 ground for possession — and the underlying rights and obligations remain.

As with the scenario under Section 21, for example the case cited earlier, Switaj v McClenaghan, historic non-compliance (for example illegal fees) can be a bar to a valid possession claim. Even under the new regime, a landlord with past compliance defects may face a challenge. Although that case is related to Section 21, the principle that non-compliance with statutory duties can affect a landlord’s ability to regain possession will remain.

What should landlords be doing now?

The re-drafted Section 8 grounds for possession rely heavily on documentary evidence. Landlords should keep a tenancy diary which documents everything: full payment histories, all correspondence and all verbal contact details.

Landlords / agents should document anti-social behaviour thoroughly. Future possession claims for this will depend on detailed incident logs, neighbour complaints, witness statements and police / crime records.

Landlords should check their letting agents’ practices to ensure that they are complying with the fees, deposit rules and other requirements they carry out on the landlord’s behalf — at the end of the day landlords remain legally responsible for these matters.

Good landlords who manage in a professional way will survive this transition to a new era. The casual or poorly prepared landlord may not.

In summary

The Renters’ Rights Bill will transform the private rented sector, but it won’t happen overnight. For at least the next year, landlords will be operating in a dual system with one foot in the old camp and one in the new. Ill informed landlords and agents will find it difficult to adapt and may flounder when it comes to legal issues.

During the transition phase, disputes like in the Switaj v McClenaghan case, will continue to be heard in the courts. The lesson from those cases and other similar ones is straightforward: the smallest technicality will make or break a possession claim.

For those landlords with cases still in the pipeline, they should make sure they’re bullet proof and for those planning for a post-Section 21 era claim, they should start preparing now.

[Main Image credit: Katrin Bolovtsova]