What is a Section 21 notice and what future changes can we expect?

By Jonathan Daines

A row of houses with section 21 notices

What will happen to the Section 21 notice?

What is a Section 21 notice?

Serving a Section 21 notice is currently the only way for a landlord to seek possession where the tenant is either not in breach of the tenancy or one several pre-advised grounds are not available. The vast majority of tenancies end because the tenant serves notice and many landlords never serve a Section 21 notice. For the most part, tenants pay the rent on time and look after the property.

Section 21 and the How to Rent Guide

In 2015, the government introduced a great little booklet entitled the ‘How to Rent’ guide. Its aim was – and still is – to inform and educate tenants and landlords of their rights, in the hope that it will go some way towards helping the industry stamp out bad practices.

Today, that booklet serves as a helpful checklist for anyone searching for a house or flat to rent and offers plenty of advice to guide tenants and landlords through every step of the letting process.

So, what does the How to Rent guide have to do with serving a Section 21 notice?

To issue a Section 21 notice to a tenant, a landlord must show that they provided their tenant with a copy of the How to Rent guide at the beginning of the tenancy. If this cannot be evidenced, a Section 21 notice cannot be issued.

So the How to Rent guide is a pretty important piece of a landlord’s armoury.

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Section 21 Notice – After 1st October 2015

For landlords whose Assured Shorthold Tenancy (AST) was created after the 1st October 2015, it’s important to serve ‘Form 6a’ for no fault possession and hand over the following documents to tenants prior to them signing the agreement:

A failure to comply with these requirements can invalidate the notice. This does not even take into account ensuring it is not served too early or acted upon too late. Evicting a tenant can be a legal minefield.

If the property is a HMO and requires a licence, this must have been obtained before the agreement is signed.

Finally, landlords must protect the deposit with a government-approved scheme and serve the relevant prescribed information within 30 days.

This importance of the signature can’t be underestimated either – it confirms that tenants have been provided with an up-to-date version of the documents and is a landlord’s safeguard!

Section 21 Notice - Before 1st October 2015

If the fixed term tenancy was created prior to 1st October 2015, no ‘How to Rent’ guide was sent out and the tenancy has now lapsed into a statutory periodic tenancy, the section notice you can serve is a Section 21(4)a.

Because of the lapsed date, remember that landlords cannot seek possession against the tenant during the first four months of the tenancy. It’s important to note that when the tenancy is a replacement tenancy, the four-month period is calculated by reference to the start of the original tenancy and not the start of the replacement tenancy.

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Future changes to Section 21

Earlier in 2019, the government announced that they intend to put an end to ‘no-fault’ evictions.

This decision was made in response to a 2018 consultation: ‘Overcoming the Barriers to Longer Tenancies in the Private Rented Sector’.

The consultation identified that there was no tenant consensus around ‘mandating a certain tenancy length’. It additionally noted that the response from landlords was for no change to the current position. The alternative to giving the tenant the security of a long-term tenancy is to remove the ability of the landlord to end a tenancy without a genuine and evidenced reason.

2019: the beginning of the end for Section 21

In the Queen’s Speech on Thursday 19th December 2019, it was announced that a new Renter’s Reform Bill will “introduce a package of reforms to deliver a fairer and more effective rental market”.

The Bill is said to put an end to no-fault evictions by removing Section 21, yet will also “strengthen the rights of landlords” who need to legitimately gain possession of their property.

A new lifetime deposit will also be introduced so that tenants will not need to save for a new deposit every time they move house.

What will replace the Section 21 notice?

If Section 21 is changed or completely repealed, the route for landlords to seek possession would be under Section 8 of the Housing Act 1988.

Section 8 allows for the landlord to seek possession during either the fixed term or the periodic element of a tenancy under either pre-advised grounds or breach of tenancy grounds.

An overhaul of Section 8 and the Schedule 2 grounds would be required to ensure that landlords can get possession of their property, if, for instance, the landlord wanted to sell. At the moment, in this scenario, the landlord either sells with the tenant in situ or serves a Section 21 notice. A new ground in Schedule 2 would be required to enable the landlords wanting to sell to claim possession under Section 8.

If Section 21 is abolished, the government would need to address this ‘grey-area’. With no way to serve notice to sell, landlords may not be willing to buy into a market without an easy exit route and lenders would be reluctant to lend to potential landlords.

How might Section 21 changes be implemented?

In most cases, possession proceedings after the expiry of a Section 21 notice are currently carried out under an accelerated possession proceeding. Ordinarily, this is a paper process and only requires a court hearing when either more information is required or the tenant raises a defence that the judge needs to understand more fully. A Section 8 possession proceeding currently always requires a court hearing.

It is hard to imagine that the courts could cope with existing Section 8 proceedings in addition to those that would have been dealt with under Section 21 proceedings as well. The location of the court will influence the amount of time between the court application and the hearing -  and courts in London already take much longer.

The government may examine the experience of Scotland, which went through a similar process and eventually scrapped their equivalent of Section 21 in 2017 and replaced it with a list of reasons why a landlord could bring a tenancy to an end.

Many tenants have expressed that they are fearful of complaining of disrepair to their landlord in case their complaint is met with a Section 21 notice. There is legislation in place to deal with this in Section 33 and 34 of the Deregulation Act 2015, as well as the Homes (Fitness for Human Habitation) Act 2018 – so why are tenants still tentative?

The answer is that the real issue is not the Section 21 notice itself – but the lack of enforcement. Are the government proposing the repeal of Section 21 as admission that enforcement is not working and they have no idea as to how to solve the problem?

What’s your opinion on this proposed change to section 21? Leave a comment below and let us know your thoughts!

About Jonathan Daines

As Founder and CEO since 2008, Jonathan’s passion for property, technology and entrepreneurship inspired the creation and innovation of LettingaProperty.com. With the support of a dedicated team of industry professionals, for the past 11 years he has built a digital marketplace offering low-cost services that empowers landlords and tenants to let and rent property with ease.

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What is a Section 21 and how are they changing?
Article Name
What is a Section 21 and how are they changing?
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What will happen to section 21? A recent announcement by the government proposes abolishing the legislation altogether. Let's look at the possible changes.
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Lettingaproperty.com
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11 Comments

    August 30, 2019 REPLY

    Think landlords should get more help not less
    Why can’t we have a direct line to tenant benefits office to call for support when tenant s doesn’t pay rent

    May 16, 2019 REPLY

    I agree, more housing is needed, not more pressure on landlords who will end up having more costs and less chance of legitimately taking their own property back.

    April 27, 2019 REPLY

    I am very uncomfortable with the politicians approach to Landlords.

    This morning an agent advised they have already lost 24 landlords thus reducing available stock whilst in addition they have started to increase rents to compensate for not being able to charge tenants fees from June 2019.
    I don’t think our politicians understand the basic’s of business notably
    Business operation costs are reflected in the price the end customer pays.
    High demand and low supply the end customer pays more…..

    April 23, 2019 REPLY

    Hi NIALL THOMPSON,

    Yes, I agree with you and a tenant can stay in the Landlords property, as long as the rent is paid and failure to pay rent, the tenants should be evicted because we have mortgages to pay on the property.
    Without Landlords out there, there would be housing crisis. If Labour Party wants to give tenants more rights then Labour Party should put down more money to build more houses, which are then rented to those same tenants, who donot pay rents or stop paying rent.
    Niall, in your case, you should have a problem to get your property back because you have a good reason for wanting it back, as this is your only home to move back into from overseas work completion.

    April 22, 2019 REPLY

    I’m a British Diplomat working overseas what do I do if I need to move back into my property when I return from a stint overseas. I am currently renting out my property. The issue I have also the Labour Party seem to hate landlords they act like there super rich people. Most are like me and are not rich. I believe a landlord should be able to kick out a tenant for non payment of rent or destroying property which in many cases is why landlords evict tenants the Labour Party would give more rights to tenants. Landlords go to great expense evicting tenants for non payment of rent and ruining properties.

      August 30, 2019 REPLY

      I agree not all landlords can afford to have tenant s not paying rent as this has a knock on effect to they livelihood
      If tenant doesn’t pay rent we still have to pay the mortgage n expenses for running the house
      Then we have to pay again to try get them evicted

      Where’s our help

    April 22, 2019 REPLY

    Whatever happens with Section 21, laws that enable a landlord to gain full possession of a property within 28 days if a tenant does not pay the rent should be introduced. It can easily take 6 months at present , and is at the landlords expense. Further, a default CCJ should then be lodged against that tenant, and an automatic debt to the landlord should be lodged against that tenant . There are very poor laws currently in place protecting landlords from rogue tenants. And local councils encourage this protracted process by advising tenants to stay put until a bailiff arrives – adding up to another 6 weeks to the process in some cases.

    April 22, 2019 REPLY

    Very good

    April 21, 2019 REPLY

    It seems fair that a property owner should be allowed to determine what he does with his property at any one time. 2 to 3 months seems a reasonable time for a tenant to find another property to rent. After all, if a tenant wishes to vacate the property for any reason whatsoever, there is nothing a landlord can do to prevent this happening, It therefore seems unfair not to give a landlord the same power. It does seem that the reasons for getting rid of Section 21 is political rather than practical. Equality for both sides must be the correct recipe. I eagerly await the proposals. Thank you

    April 20, 2019 REPLY

    Good landlords like to update their properties whenever time and circumstances permit.
    If awkward tenants will not allow landlords to gain access to do such work the only way open is to issue a section 21.notice.
    The action the government proposes will stop updating of all rented properties leading to them deteriorating over time.
    Will the Government make a commitment to provide free grants to compensate landlords over a mandatory stipulated period?
    It always seems to be the case where decent landlords suffer because of the few rogues who are not dealt with properly when they are caught.
    What is the point of having a landlords register if they are being bound with legislation that takes away their freedom?
    What about having a designated Council official who can view damage done by rogue TENANTS and stipulate what compensation they will have to pay to the Landlord, so it becomes a fair playing field?

    April 20, 2019 REPLY

    I will definitely sell all my properties if law changes as regards tenants being able to stay indefinitely 3 years minimum

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