Section 21 Notice

Possession at Tenancy End

This is known as Accelerated Possession and is based simply on the fact that the tenancy has come to an end (or a break clause has been exercised) and a valid Section 21 notice has been properly served and has also expired. You cannot serve it before you become the landlord so do not do this before the day the tenancy starts.

Hitherto it was generally considered only a Section 21(4) Notice (expiring on the last day of a period of the tenancy) could be used to obtain possession once the fixed term of a tenancy had run out and the tenancy was continuing as a periodic tenancy. This has been overturned by Spencer v Taylor which means that a Section 21(1) Notice can also be given in certain circumstances. A Section 21(1) notice can expire at any time so long as a minimum of two months' notice is given. However it cannot expire earlier than the last day of the fixed term of the tenancy.

On this page we explain in more detail exactly what a Section 21 notice is, the different types of Section 21 notices, guidance on the correct procedure to follow and links to download Section 21 notice, court form N5b and court form N325

What is a Section 21 notice?

A Section 21 Housing Act 1988 notice is the first step to obtaining the property back when there is "no fault" alleged i.e. the landlord wants to regain possession of a property at the end of an Assured Shorthold Tenancy (AST) or wishes to exercise a "Break Clause". The landlord is able to issue the tenant with a Section 21 notice without giving any reason for ending the tenancy agreement.

There are 2 types of Section 21 notice

The first is governed by S21(1)(b) Housing Act 1988 and covers the SERVICE of a notice DURING the life of the tenancy agreement. It does not matter that it will expire after the end of the tenancy. The fact that it is SERVED during the life of the tenancy means you follow these rules:

The notice has to be at least 2 calendar months long (i.e. served 30th September expires 30th November).

It cannot expire before the end of the Tenancy Agreement or the break clause if there is one. The RLA tenancy agreement does not have a break clause allowing the tenant or landlord to give notice before the end of the tenancy.

The 2nd set of rules covers the SERVICE of the notice AFTER the tenancy agreement has ended. The Landlord has never served a S21 notice before. If he has, he can rely on the earlier notice.

Here the rules are governed by S21(4)(a) Housing Act 1988. The rules are:

The notice has to be at least 2 calendar months long.

It has to expire "the last day of a period of the tenancy" and that is usually the day before the rent is due if the rent is due calendar monthly. If the rent is due weekly, 4 weekly or fortnightly then contact the RLA Helpdesk for advice. That is because the day after the written tenancy agreement expires a STATUTORY PERIODIC TENANCY comes into being and you have to calculate a new weekly, 4 weekly or fortnightly set of dates. In such cases to avoid the possibility of error you may wish to contact the RLA Landlord Advice Team for guidance.

A S21 notice stays in force unless you (a) issue a new tenancy agreement or (b) issue a letter extending the tenancy.

In light of Spencer v. Taylor, a Section 21(1) Notice can be given in certain circumstances. A Section 21(1) notice can expire at any time so long as a minimum of two months notice is given. However it cannot expire earlier than the last day of the fixed term of the tenancy.

For further information on Spencer v. Taylor and Section 21(1) form, click here

You can find further information about the Section 21 Notice in the RLA Guide to Possessions and Small Claims

Tips for serving a Section 21 notice

  1. Do not post
  2. Do not send by Recorded Delivery
  3. Take an independent witness and deliver by hand in an envelope
  4. Show witness what is in the envelope i.e. Section 21
  5. If handed to tenant, if possible get the tenant to sign for receipt on their copy and yours. When handed to tenant personally, it is considered to have been served on that day
  6. If posted through the letterbox get witness to photograph this with a digital camera, displaying the date on the photograph. Also if possible get the flat / house number in the photograph. The notice is considered to have been served the next working day when posted through the letterbox

Next steps

Once the notice expires you then complete Court Form N5b.

If the notice was served by a third party (e.g. agent) on behalf of the landlord, the third party will need to complete Court Form N215 "Certificate of Service" as the landlord will need this when applying for the Possession Order.

The day after the Section 21 notice has expired you can send the papers to court.

About 10 days later you will receive a document headed NOTICE OF ISSUE. That tells you how to calculate the time the tenant has to file a defence. The only valid defence is that there is a defect in your Section 21 notice or the tenant denies receiving the notice. After the expiry of the dates given in the Notice of Issue, complete the tear off portion and return it to the court. You should then get a possession order without a hearing.

Once you have obtained an Order for Possession be it via a hearing or, following accelerated possession without a hearing, the tenant will be given a date to leave the property. The tenant has until midnight on that date to vacate the property. After that time the property should be checked to see whether the tenant remains in the property. If the tenant does remain in the property you cannot enter and obtain possession without the Bailiff.

To obtain Bailiff possession you will need to complete a form N325.

The form will ask for details of the parties, Claim Number and date the Possession Order was given (this is the day of the hearing or day of the Order if made without a hearing). It will also ask for the date that possession should have been given up (i.e. the date the Defendant/s should have vacated). The current Court fee to instruct the Bailiff is £110.00. The Request for Warrant of Possession cannot be filed in Court until the day after possession should have been given up. One copy of the form should be filed in Court with a cheque for £110.00 (current fee). A copy should be kept for your use. The matter will be passed to the Bailiff who will issue the Warrant and inform you of the date that the Warrant will be effected. You will need to arrange to meet with the Bailiff at the property together with a locksmith to ensure that the Bailiff can hand over possession of the property to you and you are in a position to change the locks. This will then ensure that if the tenants try to re-enter the property criminal proceedings can be taken against them.

Please note that the courts often review the above prices without prior notification, please check and verify court charges before making any payment.