Evicting A Tenant: Section 21 Notices

Over the last 18 months, residential landlords have been restricted in their ability to evict tenants, including providing tenants with longer periods of notice, due to the Covid-19 pandemic.

As of 1 October 2021, the extended notice periods are no longer in force and with the government easing restrictions, it is important for landlords to be aware of the correct procedure to evict a tenant in circumstances where the fixed term of a tenancy has come to an end, or a landlord simply wishes to regain possession of their property.

What is a Section 21 notice?

In England, most residential tenancies are either:

• Assured shorthold tenancies; or

• Periodic tenancies, a tenancy which rolls on with no fixed end date or where a tenant remains in the property after the term of an assured shorthold tenancy has expired.

For both of these tenancies, the most common eviction process used is that under Section 21 of the Housing Act 1988 which is initiated by serving a Section 21 notice on the tenant.

A Section 21 notice can be used where a landlord is seeking to regain possession of their property from a tenant in the following scenarios:

• Where a fixed term tenancy ends, provided the tenancy has been made by written contact;

• During a tenancy with no fixed end date (in other words, a periodic tenancy).

A Section 21 notice provides a set date by which a tenant is required to vacate the property and landlords are not required to give a reason for wanting a tenant to leave under this procedure.

Landlords should be aware that it is unlawful to evict a tenant without a court order which will need to be obtained by issuing court proceedings if a tenant does not willingly vacate the property by the date provided for in the notice.

When can you serve a Section 21 notice?

A Section 21 notice cannot be served in the following circumstances:

• If the tenancy started less than 4 months ago, or the fixed term has not yet ended (unless there is clear wording in the contract which allows the landlord to do this);

• The property is categorised as a house in multiple occupation (HMO) and does not have a HMO licence from the council;

• In the case of tenancies granted after April 2007, the landlord has not placed the tenant’s deposit in a deposit protection scheme and has not complied with the scheme rules;

• The landlord has not provided the tenant with certain prescribed information;

• If the council has served an improvement notice on the property in the preceding 6 months;

• If the council has served a notice in the preceding 6 months to carry out emergency works on the property;

• If the landlord has not repaid any fees or deposits which they have unlawfully charged the tenant.

Section 21 prescribed information requirements

Landlords must be satisfied that they have complied with their legal obligations and requirements at the start of the tenancy and prior to serving a valid Section 21 notice. A landlord needs to have provided a tenant with:

• The property’s Energy Performance Certificate;

• The Ministry of Housing, Communities & Local Government’s guide – ‘How to rent: the checklist for renting in England’;

• If gas is installed, a current gas safety certificate for the property (within 28 days of the last gas safety check which must be carried out every 12 months).

Should a landlord serve a Section 21 notice without having complied with their legal requirements and provided the prescribed information to the tenant, the notice will be deemed invalid.

Notice periods

For most tenancies, landlords are required to give a minimum notice period of two months in a Section 21 notice. The Covid-19 pandemic has resulted in the government varying the minimum notice period several times in England. However, with effect from 1 October 2021, the minimum notice period for notices served after this date has reverted to two months although a longer notice period may still be required depending on the type and terms of the tenancy.

Landlords should always check to ensure that they are aware of the minimum notice period that needs to be given to a tenant in a Section 21 notice.

If you are a landlord and want advice on serving a valid Section 21 notice to your tenant or on repossessing your property in general, please contact our Dispute Resolution team on 0116 281 6231 or Paul.Davis@bhwsolicitors.com.