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Section 21 notices: getting the dates right

Posted on 17/06/21 in Housing Matters

Section 21 notices: getting the dates right

John Gallagher, Principal Solicitor at Shelter, examines the rules governing section 21 notices, focusing on basic notice requirements.

No fault evictions using section 21

The assured shorthold tenancy, the default tenancy in the private rented sector and for housing associations, has been with us since January 1989.

Its main distinguishing feature - and its attraction to landlords - is the ‘no fault’ section 21 notice. Section 21 of the Housing Act 1988 enables landlords to apply to the court for a possession order without a ground for possession.

A section 21 notice may be given by only one of two or more joint landlords.

The government has proposals to abolish assured shorthold tenancies, which would mean the end for section 21.

A landlord cannot start possession proceedings until the notice period has expired. The government has also introduced temporary changes to notice periods because of the pandemic.

Section 21 notice periods during and after the pandemic

The standard minimum period of a section 21 notice is two months. That period was extended as a result of the coronavirus pandemic.

The minimum notice period varies depending on when it was served:

  • 2 months before 26 March 2020
  • 3 months between 26 March 2020 and 28 August 2020
  • 6 months between 29 August 2020 and 31 May 2021
  • 4 months between 1 June 2021 and 30 September 2021

From 1 October 2021 the notice period is set to return to the standard two months.

A ‘month’ means a calendar month.

The notice period runs from the date when it is received by the tenant. Landlords who send notices by post should allow time for delivery.

For example, if a landlord posts a notice on 21 June 2021 and a tenant receives it on 25 June 2021, the notice period will end on 25 October 2021. The court proceedings can start on 26 October 2021.

When prescribed Form 6A is needed

Form 6A is the prescribed form of section 21 notice. It is mandatory for assured shorthold tenancies which began on or after 1 October 2015.

Landlords have the option of giving notices in prescribed Form 6A for older tenancies and often use it, but it is not required.

Form 6A was originally intended to be mandatory for all assured shorthold tenancies in England, irrespective of their start date, from 1 October 2018. However, the regulations still apply only to newer tenancies and have not been changed.

Section 21(1) notices for tenancies after a fixed term has ended

Most assured shorthold tenancies are granted for an initial fixed term, for example 12 months. If a tenant remains in occupation after the fixed term of their assured shorthold tenancy ends, their tenancy becomes a statutory periodic tenancy (also called a ‘rolling’ or ‘month-to-month’ tenancy).

To end a statutory periodic tenancy, the landlord will need to use a notice under section 21(1) of the Housing Act 1988 and bring court proceedings if the tenant does not move out.

A landlord has to give the required period of notice to a tenant, stating that the landlord requires possession. There is no need for the notice to specify an end date for the notice, provided that the notice period is correct.

The landlord will need to prove to the court that the fixed-term tenancy has ended, and that no new fixed term tenancy has been granted.

‘Break clauses’ and notices for tenancies during a fixed term

If an assured shorthold tenancy is for a fixed term that has not yet ended, the landlord can only rely on section 21(1) to claim possession if the tenancy agreement contains a ‘break clause’ which allows the landlord to end the fixed term early.

If a fixed-term tenancy agreement does not contain a break clause, the landlord may serve a section 21(1) notice before the fixed term expires but cannot apply for a possession order until after the fixed-term has ended.

It is likely that a notice which expires earlier than the last day of the fixed term is not a proper notice. This is because the tenant who receives the notice may be misled into thinking that they have to leave before the end of the fixed term.

Section 21(4) notices for contractual periodic tenancies

A contractual periodic tenancy is where when both landlord and tenant agree that the tenancy is ‘rolling’, for example from month to month. There is no requirement for this agreement to be in writing.

Section 21(4) applies only in any one of these situations:

  • the tenancy started as a contractual periodic tenancy
  • the tenancy agreement provides that the tenancy will continue as a periodic tenancy after the end of the fixed term
  • a landlord and tenant enter into a new agreement for a contractual periodic tenancy following the end of the fixed term.

The Court of Appeal held in 2013 that it is not necessary for the landlord to use a section 21(4) notice where the tenancy is a statutory periodic tenancy following a fixed term, however long ago the fixed term may have ended.

Differences between section 21(1) and 21(4) notices

The main distinction between a section 21(1) and a section 21(4) notice is the difference in rules for when the notice expires.

A section 21(1) notice period can expire at any date after the fixed term of the tenancy ends. In contrast, the position for section 21(4) notices is more complex.

For many years, it was necessary for a section 21(4) notice to expire on the last
day of a period of the tenancy. That rule no longer applies. But the date specified in a section 21(4) notice must not be earlier than the earliest day on which a notice to quit could expire.

Where the tenancy is a monthly periodic tenancy, and when the standard period of notice is two months, then the section 21(4) notice can be for two calendar months. This is because the section 21(4) notice expiry date is bound to be later than the date when a notice to quit on a monthly tenancy would expire.

For longer periodic tenancies a longer period would be required for a notice to quit to expire. The minimum length of the notice must be at least:

  • 3 months for a quarterly tenancy
  • 6 months for a six-monthly tenancy
  • 6 months for a yearly tenancy

The other minor differences between the forms of notice under section 21(1) and section 21(4) are not important. The prescribed Form 6A satisfies the requirements of both section 21(1) and section 21(4), and can be used for either.

Validity of section 21 notice given too early

Landlords cannot rely on section 21 notices where the notice is given too early.

A notice cannot be given within the first four months from the date the tenancy began. This applies only to the original tenancy. It does not apply to a tenancy renewed at the end of the original term or to a statutory periodic tenancy.

This limitation makes little sense, since a landlord who renews a tenancy for a further fixed term is permitted to give the section 21 notice as soon as that tenancy starts. Yet, unless there is a break clause, the earliest the notice can take effect is at the end of the fixed term.

Time limits for starting court action

Before 1 October 2015, court proceedings were often issued months, or even years, after a section 21 was served on a tenant.

Now, where the standard notice period of two months applies, a section 21(1) notice is only effective for six months after it was given. This sets the time limit for the landlord to apply to the court. ‘Given’ means received by the tenant.

Likewise, a section 21(4) notice on a monthly tenancy is only effective for six months after it was given. But for longer periodic tenancies the time limit for court action is extended, because the notice period for a quarterly tenancy is longer than the standard two months’ notice period. In those cases, the landlord will be able to start a claim for possession within four months from the date specified in the notice.

The purpose of this rule is to ensure that landlords use a section 21 notice only when they genuinely want possession. Tenants should not have to live with the uncertainty created by a notice which the landlord may not intend to act on for a considerable time.

Time limits for starting court action are currently extended because of the extended notice periods. For notices given between:

  • 29 August 2020 and 31 May 2021, the landlord may rely on the notice to bring proceedings within ten months after it was given
  • 1 June 2021 and 30 September 2021, the landlord may rely on the notice to bring proceedings within eight months after it was given

Landlords should ensure that they do not start proceedings before the date specified in the notice. In Lower Street Properties Ltd v Jones (1996) 28 HLR 877, the Court of Appeal dismissed the claim for possession because the landlord had begun the proceedings the day before the section 21 notice expired.

Further resources

Shelter Legal is an online guide to housing law.

Section 21 notices for assured shorthold tenancies provides details and annotations on rules governing section 21 notices.