Section 21 possession process

The process a landlord must follow to evict an assured shorthold tenant after serving a section 21 notice.

This content applies to England

Section 21 notices for assured shorthold tenants

Section 21 of the Housing Act 1988 allows a landlord to end an assured shorthold tenancy without a reason or ground for possession.

The landlord must:

  • give the tenant a valid section 21 notice

  • issue a court claim for a possession order

  • apply for a warrant to allow bailiffs to evict the tenant

The tenant might have a defence if the notice is invalid or the landlord does not follow the correct process.

Social landlords of assured shorthold tenants must follow the Pre-action Protocol for Possession Cases by Social Landlords.

Abolition of section 21

In December 2019 the Government announced that they intended to end no fault eviction as part of a Renters Reform Bill. There has not yet been any change in the law.

Landlord serves a section 21 notice

A section 21 notice must give at least two months’ notice.

Notices for some contractual periodic assured shorthold tenants might need to be longer.

Notice periods were temporarily extended between 25 March 2020 and 1 October 2021 due to the coronavirus pandemic.

The notice must be on the prescribed form 6A.

Find out more about requirements for serving a section 21 notice.

Checking the notice is valid

The tenant has a defence to possession proceedings if the section 21 notice is not valid.

A section 21 notice can be invalid if the landlord:

  • did not serve the notice correctly

  • did not follow deposit protection rules

  • failed to provide a How to Rent Guide

  • failed to provide a gas safety certificate or EPC

  • does not have a licence where one is required

  • took a banned fee from the tenant

  • served the notice in retaliation to a complaint about the property

Find out more about what makes a section 21 invalid.

Options after a section 21 notice is served

A section 21 notice does not end an assured shorthold tenancy. The tenancy continues until the landlord obtains a possession order and enforces this with a warrant of possession.[1]

The tenant still needs to end the tenancy correctly if they want to leave. They can serve a notice to quit or agree a surrender with the landlord. If the tenant moves out by the end date on the notice this might be considered a surrender of the tenancy.

The tenant is legally threatened with homelessness if the section 21 notice is valid and expires within 56 days.[2]

Time limits for the landlord to start a claim

The landlord must start a claim within six months of the date on which they gave the tenant the section 21 notice.[3]

If the required section 21 notice period is longer than two months (for example a quarterly periodic tenancy) the landlord must start a claim within four months of the date the notice expires.[4]

Temporary extension to time limits for court action due to coronavirus

The minimum length of a section 21 notice was temporarily extended between 26 March 2020 and 30 September 2021.[5] The time limit for starting a claim was also extended between 28 August 2020 and 30 September 2021.[6]

Date notice servedMinimum notice periodTime limit to start court action
On or after 1 October 2021two monthssix months from service of the notice
Between 1 June 2021 and 30 September 2021four monthseight months from service of the notice
Between 29 August 2020 and 31 May 2021six monthsten months from service of the notice
Between 26 March 2020 and 28 August 2020three monthssix months from service of the notice
Before 26 March 2020two monthssix months from service of the notice

Tenancies granted before 1 October 2015

The time limits did not apply to tenancies granted before 1 October 2015 until 1 October 2018.[7] In a County Court case it was held that the time limits did apply where a section 21 was served before 1 October 2018 but the claim was started after that date.[8]

Landlord uses the accelerated possession procedure

The accelerated possession procedure allows a landlord to get a possession order without a hearing if there is no dispute over the facts of the case.

The claim must be only for possession.[9] The landlord must use the standard possession process if they want to bring a money claim for rent arrears at the same time.

The accelerated procedure cannot be used for a demoted assured shorthold tenancy.[10]

Conditions for using the accelerated possession procedure

The landlord can only use the accelerated procedure if:[11]

  • the tenancy began on or after 15 January 1989

  • the tenancy did not immediately follow a fully assured tenancy

  • there was a written tenancy agreement or the tenancy is statutory periodic following a tenancy that had a written agreement

Claim form and documents

The landlord must complete form N5B.

The form lists the documents that the landlord must attach. This includes a copy of:

  • the section 21 notice

  • all written tenancy agreements

  • the Gas Safety Record (if given)

  • the Energy Performance Certificate (if given)

  • the licence for the property (if required)

  • the tenancy deposit certificate (if one was paid)

  • the How to Rent guide (if they are a private landlord)

The claim form must be verified by a statement of truth signed by the landlord or their legal representative.

The claim form can be sent to any County Court hearing centre and is issued by that centre. If there is a hearing the proceedings will be transferred to the County Court hearing centre that serves that address of the property.[12]

The court sends the claim form to the tenant by first class post.[13]

Landlord uses the standard possession procedure

A standard possession claim is issued on form N5. This is the same possession process used for other types of tenancy.

The landlord must use this process if the conditions for using the accelerated procedure are not met. For example, if the tenant does not have a written agreement.

The landlord must use the standard procedure if they want to also bring a money claim for rent arrears.

Particulars of claim

The landlord must complete and send particulars of claim on form N119.

The particulars of claim must include details of the property the claim is about, including information about who is living there. They must confirm that notice has been given and the date it was given.

Statement of truth

The claim form and particulars of claim must be verified by a statement of truth signed by the landlord or their legal representative.[14]

Service of the claim form and particulars

The court usually sends the claim form to the tenant by first class post, though it may choose another method of service such as personal service.[15] The date of service is deemed to be the second day after the date of posting.[16]

The claim form and particulars of claim must be served on the tenant at least 21 days before the hearing date.[17]

Tenant defences to section 21

A successful defence needs to show that the landlord is not entitled to possession. This could include if:

  • the notice is not valid

  • there are errors in the claim form

  • the landlord has not included all the required documents

  • the landlord has not complied with statutory requirements, for example protecting the deposit

The tenant might have a defence on the basis of unlawful discrimination if all of the following apply:

  • the tenant has a disability

  • the landlord is seeking possession for a reason connected to their disability

  • the landlord cannot show eviction is a proportionate means of achieving a legitimate aim

How to file a defence

A tenant who wants to defend the claim for possession must send a defence within 14 days of receiving the claim documents.[18]

The tenant should use:

  • form N11B for a claim under the accelerated procedure

  • form N11R for a standard possession claim

Form N11B asks the tenant a series of questions to confirm whether the information the landlord provided is correct. For example, whether the deposit was protected, or the date the tenancy began.

Form N11R asks more general questions, including about rent arrears, that may not be relevant to whether possession is granted.

The tenant can submit additional legal arguments on a separate document headed with the parties' names and the claim number, clearly marked as an additional defence.

The tenant should submit a witness statement explaining their side of the case if there is a dispute about the facts of the case.

Tenant counterclaims

The tenant can counterclaim if the landlord has included a claim for a money judgment for rent arrears. If the counterclaim is successful, it can reduce or clear the arrears. It does not prevent the court from granting possession.

The tenant could counterclaim for issues such as:

  • disrepair in the property

  • a breach of the tenancy deposit rules

  • unlawful discrimination based on the tenant’s disability

A tenant who brings a counterclaim needs to file and serve their own particulars of claim. They will have to pay a court fee. If they are not successful, the tenant could be ordered to pay the landlord's costs.

How the court deals with the claim

The court process is different depending on whether the landlord uses the accelerated procedure or the standard procedure. There might not be a hearing if the landlord uses the accelerated procedure.

Landlord uses the accelerated procedure

If the tenant does not file a defence within 14 days, the landlord can make a written request for a possession order.[19] A judge will then consider the evidence in the landlord's application and either make an order or fix a hearing date.

The judge can dismiss the claim if there is a clear defect.

If the tenant does file a defence then a copy is served on the claimant and the claim and defence are referred to a judge.[20]

The judge must fix a hearing and give case management directions if they are not satisfied that that both of the following apply:[21]

  • the claim form was served

  • the landlord is entitled to possession

For example, the landlord is not entitled to possession if it appears the notice might not be valid. If the tenant files a defence includes an arguable defence then the judge has no discretion to make an order without a hearing.[22]

The court must give the tenant and landlord at least 14 days notice of the hearing date.[23]

The claim is automatically stayed if the tenant does not file a defence and the landlord does not request a possession order within three months.[24]

Landlord uses the standard procedure

The court sets the date for the possession hearing on receiving the claim form and particulars. The hearing date should be between four and eight weeks from the date the claim was issued.[25]

If there is a possession hearing

A possession claim is usually heard by a district judge. A district judge should be addressed as Sir or Madam.

The hearing usually takes less than 10 minutes. If the case will take longer because the facts or law are disputed, the judge will usually adjourn the case and list it for a longer hearing or a trial.

The landlord or their representative speaks first. The tenant or their representative can then respond and provide relevant reasons for why the judge should not order possession.

After hearing from both sides, the judge decides whether the landlord is entitled to possession.

Housing possession court duty schemes

Free advice is available at most county courts for tenants dealing with possession proceedings. Duty advice is not means tested.

The duty solicitor provides advice to tenants before the hearing, and representation in the hearing. They can explain the terms of any order to the tenant afterwards.

The tenant should arrive at court in plenty of time to speak to the duty solicitor, unless they have made other arrangements to be represented. They should find the court usher as soon as they arrive, give their name, and ask to see the duty solicitor.

The GOV.UK website has a list of duty advice providers.

Orders the court can make after a section 21 notice

The judge can make different types of order depending on whether they are satisfied that the landlord is entitled to possession.

The judge cannot make a suspended possession order.

Outright possession order

The judge must make an outright order if they are satisfied that the landlord has followed the correct procedure and is entitled to possession.

The possession order gives a date for possession, usually 14 days from the date of the hearing.

The judge can delay the date for possession for up to six weeks in the case of exceptional hardship.[26] Exceptional hardship is not defined in law. The judge can postpone the date without a hearing if the tenant says they are willing to allow the judge to consider this without one. If not, the judge must make an order for possession within 14 days and direct a hearing to decide whether to then postpone it for up to six weeks from the date that order was made.[27] The hearing must take place before the date for possession.

Adjourn to a fixed date

The judge can grant an adjournment to put off the decision about the case to a later date.

They can adjourn in very limited circumstances and only before the landlord has proved that they are entitled to possession.[28] An adjournment could be granted to allow the tenant to get detailed legal advice about their defence

Directions for a trial

The judge can adjourn the case with directions for the landlord and the tenant. Directions tell the parties what they need to do next. They are usually given in when the court needs more evidence to make a decision about a case, or where the tenant has a substantive defence.

Dismiss claim

The judge must dismiss the landlord's claim if they are not satisfied that correct process has been followed or that the landlord is not entitled to possession. For example, if the section 21 notice is invalid.

Money judgment

A money judgment is a court order for the payment of a debt. The landlord can include a claim for a money judgment for rent arrears. They can only do this if they are using the standard possession process. The landlord must have included the arrears in the particulars of claim.

The money judgment can be enforced in the same way as any other County Court money claim, for example by a court bailiffs warrant to take control of the tenant's goods.

Cost order

The tenant is usually ordered to pay some or all of the landlord's costs if a possession order is made. These include the costs paid to the court, including the issue fee. The landlord might also have incurred other costs, especially if they have paid a solicitor to deal with the claim.

Fixed costs apply where the claim is brought under the accelerated procedure and the tenant has not filed a defence, unless the court directs otherwise.[29]

The tenant is not normally ordered to pay costs if the claim is dismissed.

Tenant's application to set aside a possession order

The tenant might be able to apply to set aside the possession order if it should not have been made.

The tenant can apply to set aside a possession order made without a hearing within 14 days of the order being served. The court also has the power to set aside an order on its own initiative.[30] The tenant could apply to set aside the order if, for example:

  • they did not receive the court papers

  • they were unable to return the defence form

  • they did not know they had a defence to the claim

There is no set time limit for applying to set aside an order made at a hearing but the tenant should apply as soon as they can. The court may refuse the application if the tenant delays.

An application to set aside an order made at a hearing is more likely to be successful if the tenant was unable to attend. The tenant must provide a good reason for not attending the hearing and show that they would have had a defence.[31]

How to apply to set aside an order

The tenant must apply using form N244.

The tenant should submit a witness statement and any supporting evidence if they are applying to set aside an order made at a hearing. This should explain why they did not attend the court hearing, and why the outcome would have been different if they had.

Legal arguments for why an order should be set aside can be submitted on a separate document headed with the parties' names.

Tenant's appeal against a possession order

The tenant could appeal against a possession order. If the tenant's appeal is upheld, the original order is overturned. An appeal against a possession order is usually heard by a Circuit Judge in the County Court.

Successful appeals are brought on the basis that the judge has made an error of law or misapplied the law.

The tenant makes an application for permission to appeal on form N161 to the court that made the possession order.

The deadline for the tenant to file the appellant's notice is 21 days from the date of the order to be appealed.[32] If the appeal is late, the tenant must request permission to file their appeal late.[33]

Landlord applies for a warrant of possession

A landlord can enforce a possession order by applying to court for a warrant of possession.

The application can be made if the tenant fails to leave the property by the date given in an outright possession order.

A notice giving the time and date of the eviction must be delivered by Enforcement Agents (known as bailiffs) to the premises 14 days before the eviction date.[34]

Enforcement Agents can evict anyone they find on the premises, including occupiers who were not named on the original possession proceedings.

Government guidance for tenants states that bailiffs should not carry out evictions where someone in the household is self-isolating or has coronavirus symptoms.

Tenant’s application to stay a warrant

The tenant can apply to court to temporarily stay a warrant of possession at before the eviction is due to take place. A stay of execution delays the enforcement of a court order until a fixed date.

The court can only stay the date for up to six weeks from the date of the original possession order. The tenant must show that they would experience exceptional hardship if the eviction is not delayed. In practice, six weeks has often passed by the time a warrant is due to be executed.

The application must be made on form N244 and supported by evidence, ideally in the form of a witness statement. The tenant can submit the application to court by email or by posting. The tenant must pay a fee unless they are entitled to fee remission.

Tenant's options after eviction

The defendant could still have options after the eviction has taken place.

Setting aside a warrant after execution

An application to set aside the possession order can still be made after the warrant has been executed. If the court sets aside the possession order, the warrant is also set aside. When an order is set aside it is as if the order was never made.

In cases where the tenant does not have grounds to set aside the possession order, a warrant can only be set aside after execution where it was obtained by fraud, or where there has been an abuse of process or oppression in the execution of the warrant.

Late appeals

The deadline for the tenant to file an appellant's notice (form N161) to bring an appeal is 21 days from the date of the order to be appealed.[35]

The tenant can apply for permission to appeal late. They must ask the court for an extension of time on their application.[36] The court can set a hearing to decide whether to grant the extension, or deal with it without a hearing.[37]

There is no deadline for asking the court's permission to appeal out of time. The more time has passed, the more likely it is that the court will refuse permission.

Last updated: 16 February 2022

Footnotes

  • [1]

    s.5(1A) Housing Act 1988.

  • [2]

    s.175(4) Housing Act 1996 as amended by s.1(2) Homelessness Reduction Act 2017.

  • [3]

    s.21(4D) Housing Act 1988, as inserted by s.36 Deregulation Act 2015.

  • [4]

    s.21(4E) Housing Act 1988, as inserted by s.36 Deregulation Act 2015.

  • [5]

    para 7 Sch 29 Coronavirus Act 2020, suspended by reg 3 The Coronavirus Act 2020 (Residential Tenancies and Notices) (Amendment and Suspension) (England) Regulations 2021 SI 2021/994.

  • [6]

    see reg 2(8)(c) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564, para 7 Sch 29 Coronavirus Act 2020, as amended by reg 3(7) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; reg 4(1) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914.

  • [7]

    s.41(3) Deregulation Act 2015.

  • [8]

    Majiyagbe v Singh and Sandhu, County Court at Central London (30 August 2019), as reported in Housing Recent Developments of LAG Magazine, October 2019.

  • [9]

    r. 55.11(1)(b) and 55.12(b) Civil Procedure Rules.

  • [10]

    r. 55.11.(1)(a) Civil Procedure Rules, as inserted by Civil Procedure (Amendment) Rules 2020/82.

  • [11]

    r. 55.11-12Civil Procedure Rules.

  • [12]

    r.55.16.91A) Civil Procedure Rules.

  • [13]

    r.55.13(3) Civil Procedure Rules.

  • [14]

    r.22.1, r.22.2, Civil Procedure Rules; para 3.1 Civil Procedure Rules Practice Direction 22.

  • [15]

    r.6.4(2) Civil Procedure Rules.

  • [16]

    r.6.14 Civil Procedure Rules.

  • [17]

    r.55.5(3)(c) Civil Procedure Rules.

  • [18]

    r.15.4, 55.14, Civil Procedure Rules.

  • [19]

    r.55.15(2) Civil Procedure Rules.

  • [20]

    r.55.15(1) Civil Procedure Rules.

  • [21]

    r.55.16.3, 1r.5.16(1)(b) and 15.16(2), Civil Procedure Rules.

  • [22]

    Manel v Memon (2001) 33 HLR 24, [2000] 33 EG 74, CA.

  • [23]

    r.55.16(3) Civil Procedure Rules.

  • [24]

    r.55.15(4) Civil Procedure Rules.

  • [25]

    r.55.5(3) Civil Procedure Rules.

  • [26]

    s.89 Housing Act 1980.

  • [27]

    r.55.18 Civil Procedure Rules.

  • [28]

    North British Housing v Matthews (2004) EWCA Civ 1736.

  • [29]

    r.45.6(2) Civil Procedure Rules.

  • [30]

    r.55.19 Civil Procedure Rules.

  • [31]

    r39.3(3)-(5) Civil Procedure Rules.

  • [32]

    r.52.12 Civil Procedure Rules.

  • [33]

    para 3.2 Civil Procedure Rules Practice Direction 52B.

  • [34]

    r.83.8A Civil Procedure Rules.

  • [35]

    r.52.12 Civil Procedure Rules.

  • [36]

    para 3.2 Civil Procedure Rules Practice Direction 52B.

  • [37]

    para 3.3 Civil Procedure Rules Practice Direction 52B.