GUIDE TO WHICH SECTION 21 NOTICE TO GIVE AND WHEN TO GIVE IT
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. If you take a deposit it is essential that you have protected the deposit in one of the statutory deposit protection schemes and given the prescribed information (along with the tenant's leaflet) by the point in time when you give the Section 21 Notice. Otherwise it is invalid. Likewise, if the property requires an HMO or selective licence and there is no licence in force (and one has not been yet applied for) the Section 21 Notice is also invalid.
The position in a nutshell about which type of notice to give
The simple message is this. You can give a Section 21(1) Notice during the fixed term of the tenancy to run out no earlier than the last day of the fixed term. If you serve a Section 21 notice after the end of the fixed term you can use the more flexible Section 21(1) notice rather than the Section 21(4) notice (which to be effective has to run out on the last day of the period of the tenancy) where -
- The tenancy started life as a fixed term tenancy
- It is now running on as a statutory periodic tenancy following the end of the fixed term.
This could save you up to nearly an extra month in the case of a tenancy which is running on as monthly statutory periodic tenancy. This depends on when during the month it is served.
If it only makes a few days difference or the tenancy is a weekly tenancy you should stick to Section 21(4). This is because some judges may be resistant to the use of Section 21(1) notices which are given once the fixed term has run out so if you are in no particular hurry or prefer a "belt and braces" approach use Section 21(4) under which the notice must run out on the last day of a period of the tenancy.
If the tenancy originally started as a periodic tenancy (not as a fixed term) or the tenancy is running on as a contractual continuation following the end of the fixed term then you must use Section 21(4) so that the notice has to run out on the last day of a period of the tenancy.
Note: Although this is no longer the case, RLA tenancy agreements used to run on as a contractual continuation so make sure the tenancy agreement is checked carefully to see whether or not this is the case if you do not use the most up to date agreement.
IMPORTANT : Serving a Section 21 Notice before the tenancy deposit has been protected
If you receive a tenancy deposit then this must be protected with one of the Government approved tenancy deposit schemes within 30 days and the tenant must also be given the prescribed information within 30 days after receipt. Traditionally, many landlords have given their tenants Section 21 Notices at the outset of the tenancy as it is easier at that stage to obtain the necessary proof that the tenant has received the Notice. Where a landlord fails to protect the deposit with one of the schemes or does not give the prescribed information, a valid Section 21 Notice cannot be given (although if you fail to give the prescribed information within the 30 day period you can revive your rights to serve a Section 21 Notice - this is not possible if you fail to protect the deposit at all) without returning the deposit to the tenant.
We take the view that, when you are giving the Section 21 Notice to the tenants at the outset of the tenancy, you should protect the deposit first before actually handing over the Notice. For a time we believed as a result of the Court's decision in (R (Tummond) v Reading County Court and Pitcher) that this was not necessary. In that case the landlord gave a Section 21 Notice and then subsequently protected the deposit and gave the prescribed information, both within the 30 day period allowed. The landlord brought Section 21 proceedings and the tenant tried to defend these on the basis that the deposit was not protected/prescribed information had not been given at the point in time when the Section 21 Notice had been given to him (even though this was done in time but subsequently). The Tenancy Agreement included a clause stipulating that the deposit would be protected. The Court therefore decided that, as the landlord was contractually bound by the Tenancy Agreement to protect the deposit from the time of its receipt and that the statutory requirements would be complied with, so long as the necessary steps to protect the deposit and serve the prescribed information actually took place within the 30 day time period allowed is sufficient. The Section 21 Notice was therefore valid. However, this decision has, in effect, been overturned by the later case of Charalamba v NG where the Court of Appeal held a Section 21 notice to be invalid as the deposit was not protected at the time the Section 21 notice was given. It would seem that the same reasoning in that case would now apply to the situation were a deposit which has been received had not actually been protected at the point in time when the Section 21 notice is given.
Therefore it is not safe to give a Section 21 notice before you have protected the deposit/given the prescribed information. You should protect the deposit and give the required prescribed information BEFORE handing over a Section 21 notice, if you give a Section 21 notice at the outset of the tenancy.
Serving a Section 21 notice at the start of a tenancy
Some landlords prefer to give a Section 21 notice at the outset of a tenancy. Tenants often claim not to have received a notice but if you give the notice at the beginning there is a belief that it is easier to get proof that you have given the notice. Remember, however, that before you give the notice the tenancy must be in existence, i.e. it must be fully signed up, dated and completed. Only then should you serve a Section 21 notice.
If a property is a house in multiple occupation (HMO) which requires a licence (whether a mandatory or additional HMO licence) or is located in an area where a selective licensing is required any Section 21 notice given will be invalid unless at the time you give the notice the required licence has been granted, or at least you have applied to the Council for it.
For our Guide to giving a Section 21 notice and claiming possession click here. This gives tips on how to actually serve a Section 21 notice. In this Guide we now explain the position further.
We now explain the position in more detail.
The rest of this Section 21 guidance covers the following questions:
- Which section 21 notice to serve in a periodic continuation?
- What to do when a fixed term runs out?
- How and when to use a Section 21(1) notice?
- How do recent court rulings or legal changes affect your Section 21 notice?
The page also contains free downloads for both the Section 21(1) Notice and Section 21(4) Notice.
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