Section 21 notices are still in use
The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 came into force from 1st Oct 2015.
Although the Regulations are short, for landlords they seemed to make a significant change - they introduced a new type of notice - Form 6A - to use in place of the previously used section 21(a) and section 21(b) notices.
However, the story isn't really one of a well known piece of legislation being replaced. Form 6A is still a type of section 21 notice. However, instead of having two notices to choose from, there is only one to use. And the older notices are still required for tenancies that started before 1 October 2015 (of which there are a surprisingly large number).
This article explains the old procedures for issuing section 21 notices. It also covers use of Form 6A.
The most important factor for the landlord is to be sure they can regain control of their property when the lease or tenancy 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. The fixed term is the period specified as certain within the tenancy agreement.
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 they have broken the tenancy agreement, to be given a certain amount of time before they must leave the property. Only after this time, if they still refuse to leave, can an application to court be made to evict them and gain possession.
A section 21 (s21) notice is a written statement from the landlord to the tenant notifying that they wish 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 is required only to terminate an assured shorthold tenancy (an 'AST agreement').
It is not appropriate for other types of lease such as a commercial property lease, or a residential 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.
Only for landlords
Note as well that s21 notices only have to be used by the landlord. 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 they wish the tenancy to end (usually giving at least one month's notice depending on the notice period in the tenancy agreement).
The answer to this question depends on whether the tenant has breached the tenancy agreement. For tenancies that started before 1 October 2015 you also have to consider which of the two notices to use depending on whether the tenancy is in its fixed term, or is periodic.
All property rented under a tenancy agreement is let for an initial fixed term. Fixing the term gives certainty (security) 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.
For tenancies that started before October 2015 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 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).
The more tenancies that started more recently, when the tenant receives the notice is not important. Form 6A should be used.
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 s21 notice at the beginning of the fixed term so that the tenant has plenty of warning that they 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.
- If the tenancy is recent one, then the landlord must have also complied with other legal requirements at the start of the tenancy and throughout it. These include providing an energy performance certificate and a copy of the 'How to rent' booklet.
- Complete whichever notice is appropriate. You can obtain a copy of the older notices 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.
- 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.