Section 21 notices
This article explains what a section 21 notice is. It tells you when you should use one, and how to go about using it. It includes examples to demonstrate the correct use.
- Serving notice when the tenancy agreement is signed
- Serving notice in the first few months of the fixed term
- Serving notice in the last few months of the fixed term
- Serving notice on the last day of the fixed term
- Serving notice after the fixed term has ended
The most important factor for the landlord is to be sure he can regain control of his property when the lease ends. When the fixed term ends, the tenant does not have to vacate, but instead the residential tenancy automatically becomes "periodic" and continues on the same basis as during the fixed term.
If the tenancy is an Assured Shorthold Tenancy granted under the Housing Act 1988 (HA 1988), then the tenant has a right, by law and regardless of whether he has broken the tenancy agreement, to be given a certain amount of time before he must leave the property. Only after this time, if he still refuses to leave, can an application to court be made to evict him and gain possession.
A section 21 (s21) notice is a written statement from the landlord to the tenant notifying that he wishes to regain vacant possession of the property. It is called a Section 21 notice because the requirement for the landlord to serve the notice is a provision of Section 21 of the HA 1988.
A section 21 notice isrequired only to terminate an assured shorthold tenancy (“AST”). . It is not appropriate for other types of lease such as a commercial property lease, or aresidential licence to occupy. The HA 1988 applies only to England and Wales, so a s21 notice should not be used in Scotland or Northern Ireland.
The answer to this question depends on whether the tenant has breached the tenancy agreement and whether the tenancy is in its fixed term, or is "periodic".
Most rented property is let for an initial fixed term. Fixing the term gives certainty to the landlord and the tenant on the amount of rent, period during which it will be paid, and all the other terms of the agreement.
Unless the landlord and tenant come to a mutual agreement, the only way for a landlord to end a fixed term tenancy is to serve a Section 8 notice on one of the grounds set out in Section 8 of the HA 1988 (for example, that the tenant has breached the tenancy agreement). The landlord cannot otherwise ask the tenant to move out earlier than the date that the fixed term ends. The tenant may be able to leave earlier if there is a break clause in the agreement, but otherwise is committed to paying the rent for the whole fixed term and in return has possession (whether or not he actually lives there).
Once the fixed term ends, the tenancy becomes periodic. It continues on the same basis as it did during the fixed period except that either the landlord or the tenant may end the tenancy at the end of a period (having given sufficient notice). The length of a period is the time between rent payments - if rent is paid weekly then the period is a week, if rent is paid monthly then the period is a month.
There are two types of s21 notice. Which you should use depends on whether the tenancy is in its fixed term or not when the tenant receives the notice.
If a landlord wants possession, unless the tenant has done something wrong (that qualifies under Section 8) during the fixed term, then the landlord should use one of the two types of s21 notice. If the tenant does something wrong during a periodic tenancy, it is easier to serve a s21a notice than a Section 8 notice.
If the tenancy is periodic (or will be by the time the tenant moves out), then the tenant doesn't have to use any special form of notice and just needs to write to the landlord stating that he wishes the tenancy to end (usually giving at least one month's notice depending on the notice period in the tenancy agreement).
To make that quite clear, if the tenant will receive the notice during the fixed term (for example, 11 months into a fixed tenancy of a year) then the landlord should use a Section 21(b) notice (s21b).
If the tenancy will be periodic by the time the tenant receives the notice, then the landlord should serve a Section 21(a) notice (s21a).
By law, the landlord must give at least two months' notice regardless of which type of s21 notice is served.
The minimum notice period should start when the tenant receives the notice, not when the landlord sends it, so the landlord should factor in to the timing an allowance for delivery.
The date on which the tenant is required to leave the property must be at least 6 months after the date the tenancy started.
It is fairly common to serve a s21b notice at the beginning of the fixed term so that the tenant has plenty of warning that he must move out at the end of the fixed term. However, landlords should be careful not to serve the notice before the tenancy starts. If the landlord wants to serve notice on the same day, then the tenancy agreement should be signed first.
Although there is no prescribed format for a s21 notice, it must be served in writing and certain information must be given. Other forms of communication such as e-mail or telephone are not valid.
- Each tenant must be named on the notice individually and in full as on the tenancy agreement. As a precautionary measure, we recommend that you serve each individual tenant with a copy of the notice. It is also good practice to request that the tenants sign and return a copy to you.
- Complete whichever notice is appropriate. You can obtain a copy from Net Lawman, either at Section 21(a) notice for possession of a periodic tenancy or Section 21(b) notice for possession of a fixed tenancy. We include guidance notes on how to complete the templates correctly.
- If there are multiple landlords, any one of them can serve notice.
- Photocopy the notice, once for each tenant and once for you. If you include a covering letter, also photocopy this. A covering letter should request that the tenants confirm receipt in writing.
- Send one notice to each tenant (even if they live at the same address) by recorded delivery. Ask a friend or colleague to witness the sending. Keep proof of delivery and allow three days, even for "Next day delivery".
- Always keep a copy of the notice served and of any covering letter. The notice should be sent by recorded delivery, allowing 3 days for delivery. Keep the proof of recorded delivery and ask
In all the following examples, assume that the tenancy has a fixed term of six months, that it starts on 1 January and therefore ends on 30 June. The landlord is called Larry and the tenant is called Tom.
Larry wants to make sure that Tom leaves the property on 30 June at the end of the fixed term (the earliest date possible). As soon as Tom signs the tenancy agreement, Larry presents a s21b notice to Tom giving him notice to leave on 30 June.
(For good measure, Larry might be better presenting two copies and asking Tom to sign both to show that he has read them. Tom doesn't need to sign the s21 notice for it to be valid).
Larry wants to make sure that Tom leaves the property on 30 June at the end of the fixed term (the earliest date possible). Two months into the tenancy, Larry sends a s21b notice to Tom giving him notice to leave on 30 June.
On 5 May, Larry sends Tom a s21b notice by recorded delivery. Tom receives it on 7 May. Larry gives Tom notice so that the tenancy ends on 31 August.
On 28 June, Larry sends Tom a Section 21a notice by recorded delivery. Tom receives it on 30 June. Larry gives Tom notice so that the tenancy ends on 31 August. If the notice arrives on the last day of the fixed tenancy, a s21a notice must be used.
On 5 August, Larry sends Tom a s21a notice by recorded delivery. Tom receives it on 7 August. Larry gives Tom notice so that the tenancy ends on 30 November.
We have an article on Section 8 notices that may also be useful to you.
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