Secure tenancy notice of seeking possession

A landlord must serve a notice of seeking possession (NSP) on a secure tenant before applying to the court for a possession order.

This content applies to England

Covid-19: Extended minimum notice periods for secure tenants

Secure tenants are entitled to longer notices between 26 March 2020 and 30 September 2021. These rules also apply to flexible tenants if the landlord is seeking possession during a fixed term.

The minimum notice periods are:[1]

Four months for notices served between 1 June 2021 and 30 September 2021.

Six months for notices served between 29 August 2020 and 31 May 2021.

Three months for notices served between 26 March 2020 and 28 August 2020.

The relevant notice forms have also been amended.[2]

In certain circumstances the landlord can serve a shorter notice.

Exceptions for rent arrears

Between 29 August 2020 and 30 September 2021, the minimum notice period is four weeks if the landlord is seeking possession for rent arrears (ground 1) and the level of arrears is at least:[3]

  • four months’ worth of rent for notices served between 1 June 2021 and 30 September 2021

  • six months’ worth of rent for notices served between 29 August 2020 and 31 May 2021

From 1 August 2021 landlords can serve a two months’ notice for rent arrears of less than four months if they do not rely on any other grounds.[4]

Exceptions for grounds relating to the tenant’s conduct

Between 29 August 2020 and 30 September 2021 the standard notice rues for secure tenants apply if the landlord is seeking possession on:

  • the discretionary ground for anti-social behaviour (ground 2)[5]

  • the mandatory ground for anti-social behaviour (section 84A)[6]

If the landlord applies for possession on the discretionary ground 2, the court has the power to waive the requirement for a notice to be served.

Between 29 August 2020 and 30 September 2021 a four weeks’ notice is required if the landlord is seeking possession on one of the following grounds:[7]

  • domestic violence (ground 2A)

  • a conviction for an offence committed at a riot (grounds 2ZA)

  • acquiring the tenancy as a result of a false statement (ground 5)

The 'Technical guidance on eviction notices' document which forms part of the updated government guidance on Covid-19 and renting for landlords, tenants and local authorities contains a table summarising the minimum notice requirements for each tenancy.

Standard notice period

The following minimum notice periods apply to:

  • notices served on or before 25 March 2020

  • notices served on or after 29 August 2020 on the discretionary anti-social behaviour ground

The NSP must state a date after which court proceedings can start. The general rule is that proceedings cannot commence earlier than the date on which the tenancy could be ended by notice to quit (a complete period of the tenancy, or four weeks whichever is the longer). Normally, the date after which court proceedings can start will be:[8]

  • at least four weeks after the service of the NSP, and

  • be the first or last day of the period of the tenancy (unless the tenancy agreement says otherwise)

However, court proceedings for claims under ground 2 can start immediately. An NSP served under ground 2 must state that court proceedings may be started immediately and give a date when the landlord requires the tenant to leave the property.[9]

Form and content of notice

An NSP must:

  • be in the prescribed form, or substantially to the same effect[10]

  • specify the ground(s) on which possession is sought

  • set out the 'particulars' of the ground, explaining why the ground is being relied upon

If insufficient particulars are given, then the possession claim should be struck out.[11] The landlord can ask for permission to add to or alter the particulars. Permission will be given where it would be just and equitable to do so.[12] If the particulars are inaccurate (for example, the landlord states a rent arrears figure that is later conceded to have been wrong) the court can allow the claim to proceed or the particulars to be amended.[13]

Service

The landlord must serve the NSP on the tenant. In the event that the tenant disputes or does not acknowledge service of the notice, the landlord must prove that the NSP was served.

Section 196 of the Law of Property Act 1925 allows for valid service of the NSP 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, the agreement can provide expressly for service by these methods.[14]

Joint tenancies

The notice must be served on all joint tenants and all tenants must be named on the notice, even if some are not resident.[15]

Duration and expiry

An NSP served on a periodic secure tenancy expires 12 months after the date in which court proceedings could first be issued. A landlord wishing to start proceedings beyond that period will need to serve a fresh NSP.[16]

Specific requirements when using mandatory ASB ground

Where possession is sought under the mandatory ground for antisocial behaviour (ASB) the NSP must:[17]

  • set out details of the conviction, order, or finding on which the landlord wants to rely to show the condition is met, and

  • specify the date after which court proceedings can start, which must be:

  • at least four weeks after the service of the NSP (or one month in case of a fixed-term flexible tenancy), and

  • the first or last day of the period of the tenancy (unless the tenancy agreement says otherwise)

An NSP served by a local authority or housing action trust must also inform the tenant of their right to request a statutory review (within seven days of service of the NSP) of its decision to seek possession.[18] A secure tenant of a private registered provider of social housing does not have this right.

The time limits for the service of the NSP on the tenant vary according to which condition is being relied upon:

  • for condition 1 (conviction of serious offence), condition 3 (breach of a criminal behaviour order), or condition 5 (noise nuisance) the NSP must be served within 12 months of the date of conviction, or if appropriate within 12 months of an appeal being decided or abandoned.

  • for condition 2 (an injunction to prevent nuisance or annoyance) the NSP must be served within 12 months of the date the court found the injunction had been breached, or if appropriate within 12 months of an appeal being decided, abandoned or withdrawn

  • for condition 4 (closure order) the NSP must be served on the tenant within 3 months of the date the closure order was made, or if appropriate within 3 months of an appeal being decided, abandoned or withdrawn

Dispensation from requirement to have served notice

The requirement for an NSP to have been served may be dispensed with if the court considers it 'just and equitable' to do so (for example, where a tenant has caused a considerable nuisance to neighbours).[19]

Factors for the court to take into account include:[20]

  • the harm or hardship caused to both landlord and tenant

  • the effect of the notice not being served, and

  • whether the tenant has raised the notice point promptly

Mandatory ASB ground

The court's power to dispense with the notice requirement does not apply where the landlord is seeking possession under the mandatory ground for antisocial behaviour.[21]

Last updated: 1 June 2021

Footnotes

  • [1]

    para 3 Sch 29 Coronavirus Act 2020, as amended by reg 3(4) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914 and reg 2(5) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564; para 1(1)(b)(i) Sch 29 Coronavirus Act 202 as amended by reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2021 SI 2021/284 and reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564; reg 3 The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [2]

    paras 3 and 4, Sch 29 Coronavirus Act 2020; Part 1-2 Secure Tenancies (Notices) Regulations 1987 SI 1987/755 as amended by para 10 Sch 29 Coronavirus Act 2020; para 1 Sch 29 Coronavirus Act 2020 and reg 2(11) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [3]

    para 3 Sch 29 Coronavirus Act 2020, as amended by reg 3(4) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914 reg 2(5) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [4]

    para 3 Sch 29 Coronavirus Act 2020, as amended by reg 2(5)(c)The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [5]

    para 3 Sch 29 Coronavirus Act 2020, as amended by reg 3(4) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914 and reg 2(5) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [6]

    para 3 Sch 29 Coronavirus Act 2020, as amended by reg 3(4) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; para 1(1)(b)(i) Sch 29 Coronavirus Act 202 as amended by reg 2 The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2021 SI 2021/284.

  • [7]

    para 3 Sch 29 Coronavirus Act 2020, as amended by reg 3(4) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914 and and reg 2(5) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [8]

    s.83 Housing Act 1985 and s.5 Protection from Eviction Act 1977.

  • [9]

    s.83(5) Housing Act 1985.

  • [10]

    Secure Tenancies (Notices) Regulations 1987 SI 1987/755; for temporary changes during the coronavirus pandemic see paras 10-12 Sch 29 Coronavirus Act 2020, as amended by reg 3(10)-(11) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; reg 2 The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Wales) Regulations 2020 SI 2020/1044 (W.233).

  • [11]

    Torridge v Jones (1986) 18 HLR 107, CA.

  • [12]

    Camden LBC v Oppong (1996) 28 HLR 701, CA.

  • [13]

    Dudley MBC v Bailey (1990) 2 HLR 424, CA.

  • [14]

    Wandsworth LBC v Attwell (1995) 27 HLR 536, CA; s.196 Law of Property Act 1925, as amended by the Recorded Delivery Service Act 1962.

  • [15]

    s. 45(3) Housing Act 1988; Newham LBC v Okotoro March 1993, Legal Action 11, Bow County Court; Ch.2.42 Defending Possession Proceedings, 8th ed., LAG 2016.

  • [16]

    s.83(3)(b) Housing Act 1985.

  • [17]

    s.83ZA Housing Act 1985 as inserted by s.95 Anti-social Behaviour Crime and Policing Act 2014.

  • [18]

    s 83ZA(3) Housing Act 1985 as inserted by s.95 Anti-social Behaviour, Crime and Policing Act 2014; s 85ZA(1) Housing Act 1985 as inserted by s.96 Anti-social Behaviour, Crime and Policing Act 2014.

  • [19]

    s.83(1)(b) Housing Act 1985.

  • [20]

    Kelsey Housing Association v King (1996) 28 HLR 270, CA.

  • [21]

    s.83ZA(2) Housing Act 1985 as inserted by s.95 Anti-social Behaviour Crime and Policing Act 2014.