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Section 21 Eviction Notices A NUTS AND BOLTS GUIDE TO SECTION 21 NOTICES Elizabeth Dwomoh 27 February 2020 Introduction 1. A tenant who occupies property under a periodic assured shorthold tenancy (AST) can have their tenancy terminated by their landlord using the colloquially termed “no- fault” eviction procedure under s.21 of the Housing Act 1988 (the s.21 Procedure). 2. The aim of this seminar is to provide tenant advisors with a nuts and bolts guide to notices served pursuant to s. 21 of the 1988 Act (the s.21 Notice). 3. The following three areas are discussed in greater detail below: (a) Section 21 Notices (b) Prohibitions on the service of a s.21 Notice (c) The future of no-fault evictions A. Section 21 notices 4. When a landlord brings possession proceedings against a tenant under s.8 of the 1988 Act, they must prove that one of the mandatory or discretionary grounds for possession contained in schedule 2 to the 1988 Act is made out. A landlord using the s.21 Procedure has no such obligation. 5. The s.21 Procedure is colloquially termed a “no-fault” eviction because a landlord does not require a reason to terminate the tenancy. Although a landlord who uses the s.21 Procedure can obtain possession without needing a reason for doing so, they must still serve their tenant with a valid notice under s.21(1) or 21(4) of the 1988. The notice is commonly referred to as a “s.21 Notice”. 6. A court does not have the power to dispense with service of a s.21 Notice by a landlord. If a landlord simply fails to serve a section 21 Notice before issuing a claim for possession, the claim will fail. s.21(1) 7. Section 21(1) of the 1988 Act provides: “…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 dwelling-house if it is satisfied— 1 (a) 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 [an assured shorthold periodic tenancy (whether statutory or not)]; and (b) 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 [in writing] stating that he requires possession of the dwelling-house.” 8. In short, in order to terminate an AST under s.21(1) of the 1988 Act, the fixed term period of the AST must have come to an end and no further AST or assured tenancy can be in existence except for a periodic AST. Further, the landlord (or if there are two or more landlords, at least one of them) must give the tenant not less than two months’ notice, in writing, requesting possession of the Property. s.21(4) 9. When a fixed term AST expires, the AST automatically becomes a periodic AST rolling on from week to week (if rent is paid weekly) or month to month (if rent is paid monthly). 10. To terminate a periodic AST section 21(4) of the 1988 Act provides: “…a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied— (a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice [in writing] 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 dwelling- house is required by virtue of this section; and (b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, 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 (a) above.” 11. In precis, a landlord can terminate a periodic AST by serving a notice in writing, giving the tenant not less than two months’ notice. 2 12. The requirement that the notice must expire on the last day of the period of the tenant’s periodic tenancy has been tempered in England by the insertion of s.21(4ZA) of the 1988 Act by s.35 of the Deregulation Act 2015 (the 2015 Act), which came into force on 1 October 2015. 13. Section 21(4ZA) of the 1988 Act provides that “...in the case of a dwelling-house in England, subsection [21(4)(a) of the 1988 Act] has effect with the omission of the requirement for the date specified in the notice to be the last day of a period of the tenancy.” 14. Accordingly, a landlord can now terminate a periodic tenancy by serving a s.21 Notice pursuant to s.21(4) of the 1988 Act without specifying an expiry date that falls on the last day of the period of the tenancy. s.21(1A) & (1B) 15. Sub-sections 21(1A) and (1B) of the 1988 Act were inserted by s.164 of the Localism Act 2011 (the 2011 Act). Those subsections apply only to registered social providers who grant fixed term ASTs, where the fixed term period granted is not less than two years.1 16. In respect of ASTs that meet the criteria set out in s.21(1A) of the 1988 Act, s.21(1B) provides that: “…the court may not make an order for possession of the dwelling-house let on the tenancy unless the landlord has given to the tenant not less than six months' notice in writing— (a) stating that the landlord does not propose to grant another tenancy on the expiry of the fixed term tenancy, and (b) informing the tenant of how to obtain help or advice about the notice and, in particular, of any obligation of the landlord to provide help or advice.” The prescribed form 17. Prior to 1 October 2015 a prescribed form for s.21 Notices did not exist. Such a form was introduced by s.21(8) of the 1988 Act as amended by s.37 of the 2015 Act. The 1 S.21(1A) of the 1988 Act. 3 only requirement as to form, prior to this time was that a s.21 Notice had to be in writing.2 18. The prescribed form can be used for s.21 Notices that are given pursuant to either s.21(1) and s.21(4) of the 1988 Act. 19. The most up-to-date version of the prescribed form for s.21 Notices was introduced on 1 June 2019 by the Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2019 (SI 2019/915), Form 6A. 20. Since 1 October 2018, it has become mandatory for a landlord to use the prescribed form when serving a s.21 Notice to end an AST regardless of when the tenancy began. 21. An error on the face of the prescribed form, such as an error in the date will not necessarily render the notice defective if the reasonable recipient reading it in context would have understood what the notice was meant to convey and it complied with the statutory requirements or was substantially to the same effect.3 Moratorium on the service of a s.21 Notice 22. Since 1 October 2015, pursuant to s.21(4B)(a) of the 1988 Act a landlord cannot give a tenant a s.21 Notice served pursuant to s.21(1) or s.21(4) of the 1988 Act “within the period of four months beginning with the day on which the tenancy began.”4 23. If the tenancy is a replacement tenancy, pursuant to s.21(4B)(b) of the 1988 Act the four months’ prohibition on the service of a s.21 Notice commences from the day on which the original tenancy began. A replacement tenancy arises when a fixed term AST comes to an end and the parties to the new agreement and the property are the same.5 24. By virtue of s.21(4C) of the 1988 Act, the four months’ moratorium does not apply to statutory periodic tenancies. 2 s.21(4B)(a) of the 1988 Act inserted by s.36(2) of the 2015 Act. 3 Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] AC 747; Pease v Carter and another [2020] EWCA Civ 175 at [39]. 4 Inserted by s.36(2) of the 2015 Act. 5 s.21(7) 1988 Act. 4 Period of validity of a s.21 Notice 25. Before 1 October 2015, a s.21 Notice that was served by a landlord did not have a defined period of validity. As there was no time-limit placed on the validity of a s.21 Notice, landlords were not under any time pressures to commence possession proceedings following service of a s.21 Notice on a tenant. The absence of time- limits led to some landlords engaging in the bad practice of serving s.21 Notice on tenants without subsequently commencing possession proceedings. 26. The 2015 Act amended the 1988 Act by introducing time-limits on the validity of a s.21 Notice.6 In relation to all ASTs granted or renewed on or after 1 October 2015, possession proceedings must be issued within six months of the service of a s.21 Notice on the tenant.
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