Section 21 Notice – Important Points

A Section 21 notice is a notice that must be served on a tenant in order to remove them from a property when the tenancy comes to an end.  The landlord does not need to show any grounds for possession, other than the fact that the tenancy has come to an end, and that he has served the correct notice in the correct way. This type of notice is the most common way for landlords to start the eviction process. It may also be called an ‘eviction notice’, a ‘notice to quit’ or a ‘notice seeking possession’.

For a landlord to regain possession of a property which has been let under an assured shorthold tenancy without having a specific reason, they must serve a valid section 21 notice of the tenant.  Without this notice, a tenant cannot be asked to leave the property.

How to produce valid a Section 21 Notice

The process for preparing a Section 21 notice will depend on when the tenancy was created.

Provided that the tenancy was created on or after 1 October 2015, the landlord must use a S21 Notice form.

If the tenancy began before 1 October 2015 then there are no requirements to complete a Section 21 Notice form.  However, there is still a requirement that the notice must be given in writing.

For tenancies of properties in England that start on or after 1 October 2015, the Section 21 notice will only be valid if the tenant has been provided with the following:

• a copy of the EPC
• a copy of the gas safety certificate
• a copy of the DCLG how to rent guide

The Section 21 Notice will be invalid if:

• the landlord is carrying out a “retaliatory eviction” (see more below)
• the landlord has failed to properly protect any deposit provided by the tenant
• A licence is required to let the property, but no such licence has been obtained by the landlord.

As a landlord you must make sure your tenant is provided with the above documents to ensure you can serve a valid Section 21 notice.

As a tenant, if you believe you have not been provided with the above documents and you have been served a Section 21 notice it would be advised that you take legal advice.

Changes to Section 21 Notices

Under current law, provided the landlord has gone through the process correctly, they will be entitled to possession of the property, and they do not need to justify their decision to ask their tenant to leave.

The Government has proposed changes to Section 21 notices which would mean landlords will no longer be able to evict tenants at such a short notice without providing a reason. If the Government get rid of Section 21 notices, it would effectively create open-ended tenancies. The Government have only proposed these changes and they are not yet in place.  There is also little information available as to what grounds a landlord would need to show in order to obtain possession, such as changes in market rents.

It also must be noted that these changes will not be retrospective, and therefore existing tenancies will not be affected.

The Government have also indicated that these changes should speed up the Section 8 process (for terminating tenancies where the tenant is in breach of the tenancy agreement), as well as introducing new grounds such as when landlords want to sell or move into the property.

If there is to be a radical over hall of the section 21 process, it is possible that many landlords will leave the market. This will have a negative impact, both for landlords – many of whom have invested in property as a pension alternative – and for tenants, who will face lower supply, higher rents and increased personal and credit referencing requirements.

What Is Changing with Section 21 Notices?

Below is a list of the things that it is proposed will change.

1. A Section 21 Notice cannot validly be served in the first four months of a tenancy. This mean as a landlord you cannot serve a Section 21 Notice until the four months has passed.
2. If proceedings are not issued within 6 months of the service of a Section 21 Notice, then the notice will be invalid. As a landlord you must issue proceedings straight away as now there will be a time limit on where proceedings can be issued.
3. A landlord or their agent’s failure to provide the required information to tenants during a tenancy can invalidate a Section 21 Notice. As a landlord you must provide all information to tenants to ensure the notice will be valid when you need to produce one.

Failure to follow the prescribed and time-limited repairs process set out can both invalidate a Section 21 Notice and prevent one from being served for a further six months.

What Does This Mean?

This will mean that if landlords wish to regain possession of a property, they will need to use the Section 8 process. The Section 8 process only allows landlords to seek possession under certain grounds, the main ground is where the tenant has breached the tenancy agreement.

This means that if the tenant has complied with all aspects of the tenancy agreement, landlords will not be able to justify using a section 8 notice, as there are many occasions when the tenant has done nothing wrong.

This will mean that landlords will find it increasingly more difficult to evict a tenant. In the future this could also mean that there will be less landlords around, no one will want to become a landlord if they cannot evict their tenant should they wish too. It may become necessary for people to buy a house instead of renting.

There is a huge argument that could suggest in the future because of the argument of less landlords then homelessness could increase. Not everyone can afford to buy their own property and rely on being able to rent. If landlords do not feel comfortable with the notices, they are able to provide then they will likely want to sell and stop being a landlord.

It will also depend on if there will become changes to the Section 8 process as this is what landlords will be dependent on.

However, there is also the argument that if the section 8 process is strengthened and is more robust, then it could be a bonus for landlords. It may be quicker and easier to evict a tenant but at the moment it can be a very long period of time before the eviction of the tenant can happen.

Prepare

Since these changes have not yet come into place, it would be best to prepare yourself to be ready for them in any event.

If you are considering investing in the buy to let property market, you might wish to discuss these proposed changes with your solicitor before you commit yourself.

If you are already a landlord, you may want to consider whether you want to sell any of your properties to reduce your exposure.

Disclaimer – our articles are designed to give you guidance and information.  There is no substitute for proper direct advice, particularly as everyone’s circumstances are different.  If anything in this article may affect you, please contact us for advice that is specific to your circumstances.