Section 21 Notices: an aide memoire following a raft of legislative changes

Section 21 Notices have long been regarded as the ace up the sleeve of a landlord who has rented out a residential property to a tenant on an Assured Shorthold Tenancy (AST). Provided a valid notice has been served, a section 21 notice enables a landlord to recover possession of a property without being required to prove any fault on the part of the tenant or any justification for wanting to recover possession.

A number of legislative changes have been made in recent months which have imposed additional burdens upon private residential landlords and which have impacted on the ability to serve a section 21 notice. The following, therefore, is intended to be summary of key points for private residential landlords to keep in mind when considering issuing a section 21 notice.

Prior to any notice being served

• A Section 21 notice can only be served in relation to an Assured Shorthold Tenancy ('AST').
• If a fixed term has been granted (most ASTs have a 6-12 month fixed period), the Section 21 notice cannot expire before the end of the fixed term.
• If a tenant has paid a deposit, it must be deposited with a Tenant Deposit Scheme by the landlord within 30 days of the deposit being paid by the tenant. If the deposit has not been protected within this 30 day period, no Section 21 notice can be issued unless the deposit has first been returned to the tenant.
• Prescribed information regarding the deposit must be provided to the tenant within 30 days of the deposit having been deposited with a Tenant Deposit Scheme, failing which no section 21 notice can be issued until such time as that information is provided. See below for more details in respect of tenancies commencing on or after 1 October 2015
• If the tenancy started on or after 1 October 2015, a 21 notice cannot be issued within the first 4 months of the tenancy; the tenant must have been provided with the prescribed information in the form of the Department for Communities and Local Government's "How to Rent: The Checklist for renting in England" (https://www.gov.uk/government/publications/how-to-rent) booket; the service of a retaliatory section 21 notice (where a landlord serve a notice in response to a Tenant raising a grievance with the property) is prohibited; a valid EPC and Gas Safety Certificate must have been provided to the tenant prior to a section 21 notice being issued.

When serving the notice

For ASTs commencing on or after 1 October 2015

• Section 21 notices must be in a new prescribed form. There is no requirement for landlords to use the new notices in relation to tenancies pre-dating 1 October 2015.
• Section 21 notices no longer have to expire on the last day of a period of the tenancy. This even is the case where a tenancy is a periodic tenancy, but see below a warning regarding pre-1 October 2015 periodic tenancies.
• Where a landlord is required to give the standard 2 month section 21 notice (where the tenancy is a weekly or monthly tenancy), proceedings must be commenced no later than 6 months after the date the section 21 notice is served upon the Tenant.
• Where a landlord is required to give more than the standard 2 month section 21 notice (where rent is paid, for example, quarterly or yearly), proceedings must be issued no later than 4 months after the termination date specified in the section 21;

For AST's commencing prior to October 2015, there is no requirement to use the new notice, though the expectation is that the new notice will be used in all cases by landlords so as to avoid any inadvertent use of an pre-1 October 20115 notice in relation to a post 1 October 2015 AST. Care must be taken, however, if the tenancy is a pre-October 2015 AST and has always been periodic. In those circumstances, to avoid risk of the validity of the notice being challenged, landlords should ensure their section 21 notice expires at the end of a period. They may, as a result wish to continue using the pre-1 October 2015 periodic tenancy section 21 notice with its 'catch all' provision in those specific circumstances.

Concerns have been expressed that the recent changes create confusion and increase the risk of inadvertent technical breaches rendering section 21 notices invalid, make it more difficult for landlords to recover possession of their properties. However a Section 21 notice still provides an effective means to bring an AST to an end. Rollits' Property Dispute Resolution Team has considerable experience in drafting and advising upon section 21 notice and are able to assist any landlords or tenants with any section 21 concerns.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.