This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Section 21 notices

This content applies to England

Section 21 notice requirements for ending an assured shorthold tenancy (AST) without proving any ground for possession.

To regain possession of a property let under an AST without having a specific reason or ground for possession (such as rent arrears), a landlord must first serve a valid section 21 notice on the tenant.

For information about what happens when a valid notice expires and the tenant remains in occupation see Possession proceedings.

Form

A 'section 21 notice' must be in the prescribed form (or in a form substantially to the same effect) if it relates to a tenancy beginning on or after 1 October 2015. [1]

Before 1 October 2015, there was no requirement that notice was given in a prescribed form (although it had to be in writing).[2] For ASTs granted before that date (and which have not been renewed since):

  • it is unclear whether section 21 notices served on or after 1 October 2018 are valid if not served in the prescribed form
  • section 21 notices served before 1 October 2018 will have been valid even if not served in the prescribed form. A landlord will be able to rely on such a notice in an application for a possession hearing made on or after 1 October 2018.[3]

Notice period: fixed term & statutory periodic ASTs

A section 21(1)(b) notice must give the tenant at least two months' notice that the landlord requires possession of the property. Any date can be given for the expiry of the notice as long as it meets that requirement. A landlord can use this notice to end the following types of AST:[4]

  • fixed-term
  • statutory periodic

Where the agreement is fixed term and contains no break clause, it is unclear whether a notice served during the fixed term and where the two-month notice period expires before the end of the fixed term is valid. It may be argued that such a notice is premature and misleading.

A landlord cannot commence possession proceedings until the notice period has expired and, if appropriate, the fixed-term of a tenancy has ended (unless there is a break clause).

Notice period: contractual periodic ASTs

If the tenancy is a contractual periodic AST from the start, the section 21 notice must:[5]

  • be of a period of at least two months, or equal to the length of the period of the tenancy, whichever is longer
  • state that possession is required under section 21 of the Housing Act 1988 (for tenancies beginning on or after 1 October 2015 the prescribed form containing this information will have to be used - see above).

Where the contractual period of the tenancy is longer than two months, the section 21 notice period must be for at least a full period of the tenancy, ie it may specify any date on or after the earliest day a notice to quit could take effect.[6] For example if the contractual period is quarterly or six monthly the length of the notice must be a full period of the tenancy (or six months in the case of yearly tenancies).

It is also likely that the notice requirements above apply when a fixed-term AST has expired and the tenancy agreement provided for the tenancy to continue as a contractual periodic AST (for example, the agreement stated that the AST was for a term of 12 months and thereafter from month to month').

A landlord cannot commence possession proceedings until the relevant notice period has expired.

Contractual periodic ASTs granted before 1 October 2015

For contractual periodic ASTs granted before 1 October 2015 it was also a requirement that the section 21 notice specify a date which is the last day of a period of the tenancy, after which possession is required. This requirement ceased to apply on 1 October 2018.[7] However, where a notice was given before this date and is used in connection with a possession claim made after, it is likely to have to have complied with this requirement.

Establishing the last day of a tenancy period

Establishing the last day of a period of a tenancy is not always straightforward.[8] The day on which rent is paid may be, and often is, indicative of the start day of a period of the tenancy, but not always. In some cases, although the periodic tenancy began on the first of the month, in practice the rent could be paid on a different day of the month. This would not affect the start/end of the periods of the tenancy; it is simply an accounting matter.[9]

Savings clause

Landlords will often serve a notice including both a date for the expiry of the notice and a 'saving clause' stating that possession is required 'at the end of the period of the tenancy which expires next after a period of two calendar months from the service of the notice upon the tenant'. A section 21 notice containing such a clause can be valid.[10]

There had been some doubt about the situation where a notice contains both a savings clause and an incorrect date, but the courts have accepted notices that gave two possible dates for termination as valid.[11] A saving clause must be read strictly because, if it is to be relied upon to validate a section 21 notice, it must produce a definite date. The example of a savings clause in the preceding paragraph would be valid as it enables the tenant to ascertain the appropriate date.

Fixed-term tenants of social landlords

In addition to the requirement of serving a valid section 21 notice before issuing possession proceedings, a landlord who is a private registered provider of social housing (PRPSH) must give certain assured shorthold tenants a notice of non-renewal. This only applies to ASTs which:[12]

  • were granted on or after 1 April 2012, and
  • last for a minimum fixed term period of two years
  • do not contain a break clause.

The High Court has held that there is no need for a notice of non-renewal where the tenancy agreement contains a break clause. This is because the section 21 notice itself can be sufficient to end the fixed term. Therefore, when the landlord applies for a possession order, a statutory periodic tenancy will be in existence which will not be subject to the requirement.[13] This would also allow the landlord to end the tenancy part way through the fixed term. Where there is no break clause, the landlord will have to serve the notice of non-renewal and wait until the end of the fixed term to gain possession.

In a similar way, a section 21 notice can be served at the end of the fixed term tenancy without being preceded by a notice of non-renewal.

A notice of non-renewal must:[14]

  • be in writing
  • be of a period of at least six months
  • state that the landlord does not intend to grant a further tenancy
  • inform the tenant how to obtain help or advice on the notice.

A tenant has no statutory right of review of the landlord's decision not to renew the tenancy. However, it may be possible to challenge the service of section 21 on public law or human rights grounds.

Service

The section 21 notice must be served by the landlord (or an agent acting on her/his behalf). A notice served on a subtenant (who was an assured shorthold tenancy) by a head landlord before the mesne tenancy ended was held to be invalid.[15]

A landlord is not required to serve a section 21 notice in any particular way. In the event the tenant does not acknowledge service, a landlord must prove that the notice was served.

Section 196 of the Law of Property Act 1925 allows for valid service of the notice to be made by registered post or recorded delivery, or personal delivery to the tenant's property, but only when the tenancy agreement explicitly states that service will be effective where it is done in accordance with section 196. Alternatively, service can be made by other methods specified in the tenancy agreement.[16]

Timing of service

Regardless of when an AST was granted, a section 21 notice served by the landlord within the initial four-months' period of the original tenancy is invalid.[17]

However, where the original tenancy has expired after less than four months and a new tenancy has arisen:[18]

  • the four month requirement will not apply where the new tenancy is statutory periodic
  • notice will be invalid if served earlier than four months after the beginning of the original tenancy where the new tenancy is either a fresh fixed term agreement or is a contractual periodic tenancy provided for by the original agreement.

Duration and time limits

If possession proceedings are not started within a prescribed time limit the landlord must serve a fresh section 21 notice.

AST granted or renewed on or after 1 October 2015

For a section 21 notice to remain valid, possession proceedings must be commenced within:[19]

  • six months of its service on the tenant, or
  • four months of the expiry date of the section 21 notices for periodic ASTs where the period of the tenancy is greater than two months, for example, a quarterly periodic tenancy.

AST granted before 1 October 2015 (and not renewed since)

For a section 21 notice served on or after 1 October 2018 to remain valid, the same prescribed time limits as for ASTs granted on or after 1 October 2015 (as set out above) apply.[20]

For a section 21 notice served before 1 October 2018, it is not clear if the prescribed time limits will apply where possession proceedings are commenced on or after 1 October 2018. It seems likely that if the possession proceedings are commenced more than 6 months after service it will invalidate the section 21 notice. For possession proceedings commenced before 1 October 2018 there was no time limit after service of the section 21 notice.

Restrictions on use of section 21

There are a number of situations where a landlord cannot use the section 21 procedure if s/he wishes to regain possession of an AST. For further information see the page Restrictions on the use of section 21.

Rent repayment after expiry of section 21 notice

Where an assured shorthold tenancy is brought to an end by service of section 21 notice before the end of a period and the tenant has paid rent in advance for that period, s/he is entitled to a rent repayment for the amount of the period in which s/he was not in occupation. For more details see How to end an assured shorthold tenancy.

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] s.21(8) Housing Act 1988, as inserted by 37(8) Deregulation Act 2015; reg 3(fa) Assured Tenancies and Agricultural Occupancies (Forms)(England) Regulations 2015 SI 2015/620 as inserted by reg 2 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015 SI 2015/1725; s41(3) Deregulation Act 2015.

[2] s.21 Housing Act 1988.

[3] s.21(8) Housing Act 1988, as inserted by 37(8) Deregulation Act 2015; reg 1(3) and reg 1(4) Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.

[4] s.21(1) Housing Act 1988; Spencer v Taylor [2013] EWCA Civ 1600; s.21(4ZA) Housing Act 1988, as inserted by s.35 Deregulation Act 2015; art 11(i), Deregulation Act 2015 (Commencement No. 1 and Transitional and Saving Provisions) Order 2015 SI 2015/994; s41(3) Deregulation Act 2015..

[5] s.21(4) Housing Act 1988.

[6] s.21(4)(b) Housing Act 1988.

[7] s.21(4)(a) Housing Act 1988 and s.21(4ZA) Housing Act 1988 as inserted by s.35 Deregulation Act 2015.

[8] for example, see Salford CC v Garner [2004] EWCA Civ 364.

[9] Sidebotham v Holland [1895] 1 QB 378.

[10] Lower Street Properties Ltd v Jones (1996) 28 HLR 877; Notting Hill Housing Trust v Roomus [2006] EWCA Civ 407; Taylor v Spencer [2013] EWCA Civ 1600.

[11] Spencer v Taylor [2013] EWCA Civ 1600; Hussain v (1) Bradford Community Housing Ltd (2) Kauser [2009] EWCA Civ 763.

[12] s.21(1A) and (1B) Housing Act 1988, as inserted by s.164 Localism Act 2011; Livewest Homes v Sarah Bamber [2018].

[13] Livewest Homes v Sarah Bamber [2018] EWHC 2454 (QB).

[15] s.21(1)(b) and (4)(a) Housing Act 1988; (1) Barrow & (2) Amey v Kazim & Ors [2018] EWCA Civ 2414.

[16] s.196 Law of Property Act 1925, as amended by the Recorded Delivery Service Act 1962; Wandsworth LBC v Attwell (1995) 27 HLR 536, CA; Blunden v Frogmore Investments [2002] EWCA Civ 573.

[17] s.21(4B) Housing Act 1988 as inserted by s.36(2) Deregulation Act 2015; Deregulation Act 2015 (Commencement No. 1 and Transitional and Saving Provisions) Order 2015 SI 2015/994.

[18] s.21(7) Housing Act 1988 as inserted by s.99 Housing Act 1996 and amended by s.36(3) Deregulation Act 2015; s.21(4C) Housing Act 1988 as inserted by s.36(3) Deregulation Act 2015; s.21(4B)(b) Housing Act 1988 as inserted by s.36(2) Deregulation Act 2015; Deregulation Act 2015 (Commencement No. 1 and Transitional and Saving Provisions) Order 2015 SI 2015/994.

[19] s.21(4D)-(4E) Housing Act 1988, as inserted by s.36 Deregulation Act 2015; Deregulation Act 2015 (Commencement No. 1 and Transitional and Saving Provisions) Order 2015 SI 2015/994; s41(3) Deregulation Act 2015.

[20] s.21(4D)-(4E) Housing Act 1988, as inserted by s.36 Deregulation Act 2015; s41(3) Deregulation Act 2015.

Back to top