Under the Housing Act 1988, a Landlord who has let a property with an Assured Shorthold Tenancy has a legal right to get the property back at the end of the Tenancy. The Landlord is required to follow the correct legal procedure which includes serving a Notice (under Section 21 of the Housing Act 1988) on his Tenant.
Section 21 Notice – Used to regain possession of property that has an Assured Shorthold Tenancy
The Section 21 Notice is divided into two subsections, namely:
1. Serving Notice during a fixed term
2. Serving Notice during a Statutory Periodic Tenancy (i.e. when the fixed term has come to an end and the tenant remains in the property)
Different rules apply to these Notices:
Serving a Section 21(1)(b) Notice during Fixed Term Tenancies
The rule here is that Landlords are required to give their tenants a minimum of two months' Notice in writing confirming that he/she wants to take back possession of the property.
The Section 21 Notice must be served on the Tenant before possession action can be started. In the case of joint Landlords the Notice can be given by any one of them. Possession under this Section cannot take place during the initial six months of the original Tenancy.
Tip – An extra 3 days should be added if the Notice is to be sent by post as the two months starts when the Tenant receives the Notice.
The Section 21(1)(b) states:
Without prejudice to any right of the Landlord under an Assured Shorthold Tenancy to recover possession of the property let on the Tenancy in accordance with Chapter I above, on or after the coming to an end of an Assured Shorthold Tenancy which was a fixed-term Tenancy, a court shall make an order for possession of the property if it is satisfied-
- that the Assured Shorthold Tenancy has come to an end and no further Assured Tenancy (whether Shorthold or not) is for the time being in existence, other than a Statutory Periodic Tenancy: and
- The Landlord, or in the case of joint Landlords, at least one of them has given to the Tenant not less than two months' Notice stating that he requires possession of the dwelling-house.
Notice under this subsection can be served on a Tenant at any time during the fixed term of the Tenancy provided that the Tenant receives a minimum of two months' Notice. This is the case even if the two months’ Notice ends after the Tenancy agreement has expired.
For example, if Notice requiring possession is served on the last day of the Tenancy agreement, the Tenant does not have to give up possession of the property until at least two months after the date that the Notice was served.
The Notice should be dated in accordance with the provisions above. Also, a Notice should not be dated to expire on or before the last day of the Tenancy as this would be invalid.
For example, where the Tenancy was due to expire on December 31st, then the Section 21 Notice could be served on or before October 31st, and the Notice dated to expire ‘after December 31st'.
Serving a Section 21(4)(a) Notice during Periodic Tenancies
Section 21(4)(a) of the Housing Act 1988 applies to Assured Shorthold tenancies that have become periodic and states:
Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a property let on an Assured Shorthold Tenancy which is a periodic Tenancy if the court is satisfied-
- that the Landlord or, in the case of joint Landlords, at least one of them has given to the Tenant a Notice stating that, after a date specified in the Notice, being the last day of a period of the Tenancy and not earlier than two months after the date the Notice was given, possession of the property is required by virtue of this section; and
- that the date specified in the Notice under paragraph (1) above is not earlier than the earliest day on which, the Tenancy could be brought to an end by a Notice to quit given by the Landlord on the same date as the Notice under paragraph (1) above
The procedure for serving Notice under SECTION 21(4)(a) is slightly more complicated.
A Notice complying with the above section should only be given to a Tenant whose Tenancy has become a Statutory Periodic Tenancy - a Tenancy that continues after the expiry of a fixed term Assured Shorthold. A minimum of two months’ notice is required and the day on which the notice expires must be the expiry last day of a period of the Tenancy.
The period of a Tenancy depends on how often the rent is paid. Thus, if the rent is paid monthly, then the period of the Tenancy is one month. In order to find out what day is the last day of the period in a particular Tenancy it will be necessary to refer to the original fixed term Tenancy.
The periodic Tenancy begins immediately after the fixed term expires. E.g. If the period of the Tenancy is monthly and if the first day of the current period is 3rd March then the last day of that period would be the 2nd April and so a Notice served during the current period would need to be completed so as to expire on the last day of a period after a further two months (i.e. 2nd June).
Most cases where a Landlord fails to get a Court Order to enforce a Section 21 fail because the wrong date has been used in the Notice.
If the Tenant does not leave on expiry of the Notice, possession can be sought through the courts by either the normal fixed date action or by using the accelerated possession procedure, which can be done online and may not result in an appearance in Court.
To recover outstanding rent and possession of a property, the Landlord must seek possession by issuing a Notice under section 8 of the Housing Act 1988, as amended by the 1996 Act and it is not necessary to issue a Section 21 Notice as well.
Where Possession has been gained through a Section 21 Notice the Landlord can take separate legal action to recover lost rent. There is no reason why a Section 8 and a Section 21 Notice cannot be served on the same Tenant, this gives the Landlord two routes to Possession.
Where a Section 21 Notice is served during the initial term of the Tenancy requiring possession at the end of the fixed term and the parties later agree to renew the Tenancy for a further fixed term, a fresh Notice will need to be issued to the Tenant(s) before possession can be sought.
If the Tenancy becomes a Statutory Periodic Tenancy, following a fixed term the Section 21 Notice will remain valid.
How to serve a Section 21 Notice
A Section 21 Notice may be served by post or in person. The courts will recognise the day of postal service as the day on which the letter would normally have arrived. When using postal service, it is recommended that you post the Notice in two separate Post Offices and get proof of postage which is free of charge.
A Notice can be handed to the Tenant or posted through the letter box of the property. Whichever method of Service you use always get a witness statement stating that the witness read the Notice and noted that it was to (name of Tenant) at (address of property) and that it was posted/handed at xxx (time) on xxxx (date). This is to avoid delays in legal action where the Tenant denies receiving the Notice or says that an empty envelope arrived.
Once you have issued the Section 21 Notice on your Tenant, you are required to wait until the Notice has expired (this is the day following the date given on the Notice) before you can start possession proceedings. If the Tenant has not vacated, or paid up any rent arrears by this point, then it will be necessary to start court possession proceedings. This is done by obtaining the appropriate forms from your local court. There are two procedures that can be used; the standard possession procedure and the accelerated possession procedure (APP).
The Housing Act 1996
The Housing Act 1996 amended the Section 21 of the 1988 Act by requiring the Notice given to be in writing. There is still no prescribed form. The Notice will be valid providing it contains the information required by the relevant section and sub-sections. Notices meeting these requirements are available from lettingaproperty.com and other various legal stationers.
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