Section 21 Notices are eviction notices used by landlords in England & Wales when they want to evict tenants at the end of the fixed term.
Find out more on when they should be used and how they are served.
What is a Section 21 Notice?
The eviction notice’s official title in the courts is a ‘Notice Requiring Possession (under section 21 of the Housing Act 1988)’.
It’s used in England & Wales by landlords to evict tenants and to gain possession of a property that is let under an assured shorthold tenancy (AST). The notice can only be used to gain possession where the tenancy is for a fixed term and the property can only be vacated when the tenancy is at an end.
If the landlord wants a tenant to vacate their rental property during the fixed term, then the tenant can only be evicted if a breach of contract has been proved. The landlord cannot use a Section 21 Notice and must use a Section 8 Notice instead. Section 8 Notices can only be used when a tenant is in rent arrears.
When can a landlord serve a Section 21 Notice, and what about Coronavirus?
Normally, a landlord must give a tenant a minimum of two months’ notice, in writing. In England and Wales, under Coronavirus legislation the minimum length of time to be given by a section 21 notice is now six months. This change is temporary and is due to expire in England in April 2021. You must check the current situation before serving any notices as it is impossible to rule out further changes.
You cannot serve a Section 21 Notice at any time during the first four months that the tenant occupies the property. So, for a tenancy that begins on 10 January 2019 you cannot serve a section 21 notice until at least 10 May 2019.
The notice can also be served on the last day of the tenancy, in which case the tenant wouldn’t have to vacate the property for a further two months after that.
If the tenant is in the initial six months of the tenancy, then the notice cannot expire before the end of those six months.
How can you work out the notice period?
Under normal regulations, a general minimum notice period of two clear calendar months must be given to the tenant so, for example, if a notice is served on 20 March, it cannot expire any earlier than 20 May.
Lawpack’s solicitor-approved Section 21 Notice template provides expert guidance on when you should serve the notice.
Serving a Section 21 Notice after the fixed term has ended
If the Section 21 Notice is served after the fixed term has ended, the landlord must give at least two months’ notice and the notice must end on the last day of a ‘period of the tenancy’.
The last day of a period of the tenancy will be the day before the day the rent was supposed to be paid in the fixed-term contract. For example, if the rent is due on the 1st of each month, then the end of a period will be the last day of the preceding month. So, if the notice is then given on 2nd January, the expiry date given in the notice must be 31st March, being the day before the rent is supposed to be paid as the notice must be two clear months. This means, in effect, that the notice will usually give the tenant between two and three months.
Note that for weekly tenancies, it‘s the day in the week that the rent is paid on that is important, rather than the date in the month. So in the example given above, if a weekly tenancy existed where the rent was paid first on Wednesday 31 December, then the periodic tenancy would run from Wednesday to Tuesday.
Can the tenant sign the Section 21 Notice at the same time as the tenancy agreement?
No. Landlords shouldn’t serve a Section 21 Notice at the same time as the tenant signs the tenancy agreement, as this can invalidate the notice.
But this isn’t a problem if the notice is served one day after signature of the tenancy agreement, provided that any deposit has been registered and all the necessary information given to the tenant before service of the notice.
Who is the notice addressed to?
All the tenants must be named and the names of the parties and the address should match those in the tenancy agreement. Even if some tenants have moved out, they should still be named on the notice if they were named on the most recent tenancy agreement.
As a precautionary measure, each individual tenant must be served with a notice. If the tenant is renting a room in a shared house, the landlord must specify the room (e.g. ‘room 1’) rented by the tenant, as well as the property address.
How do I serve the Section 21 Notice?
The notice should be served on the tenant by the means specified in the tenancy agreement. If Lawpack’s assured shorthold tenancy agreement is used, the Section 21 Notice must be given to the tenant directly, or put through the door of the property, or mailed by first-class post.
The tenants must sign and return a copy to the landlord. Landlords should always keep a copy of the notice served and of any covering letter.
Are there any restrictions?
Yes. Landlords are not entitled to evict tenants using a Section 21 Notice while the tenant’s deposit is not protected with one of the statutory tenancy deposit schemes.
A landlord may require a licence to let their property depending on where it is located, and how it is occupied. If the landlord requires a licence but has not obtained or applied for one, he cannot serve a valid Section 21 Notice.
There are additional requirements for tenancies which began on or after 1 October 2015 in England only. You cannot serve a valid Section 21 Notice unless the tenant has been given: (i) a valid Energy Performance Certificate,(ii) a copy of the Gas Safety Certificate (a copy must be given to the tenant before they occupy the property, and then every year the tenant must be given another copy of the certificate from the annual check), and (iii) a copy of the Government’s ‘How to Rent Guide’. These must all be given before you can serve a Section 21 Notice.
How long will the eviction process take?
There is a special court procedure landlords can use if they are reclaiming possession of a property after the service of a Section 21 Notice and there is generally no need for a court hearing. This is called the ‘accelerated procedure’, which will normally take about eight to ten weeks.