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Assured shorthold tenancies in England and Wales

Possession via Section 21 Notice

The Housing Act 1988 allows landlords of assured shorthold tenancies to recover possession of their property without requiring any reason, or ground, to do so.
This is often referred to as a “no-fault” possession because it does not require the tenant to be in breach of the tenancy.

Another advantage of this possession route is that it allows the landlord to use the accelerated possession procedure, so-called because it does not require a court hearing. Landlords should keep in mind that ‘accelerated’ does not mean ‘fast’, though!

A landlord wishing to recover possession must serve notice to his tenant under section 21 of the Housing Act 1988. Such notice is therefore commonly known as a section 21 notice.

Requirements

A section 21 notice must be in writing but does not have to be in a specific form (there is no prescribed form for section 21 notice).
It must give at least 2 months notice to the tenant and cannot expire during a fixed term AST.

If the tenancy is a periodic AST (but not a statutory periodic AST) there may be further requirements regarding the precise wording of the notice and the expiry date.

A section 21 notice is not a notice to quit and, on expiry, only entitles the landlord to start legal proceedings to seek a court order for possession.
This is done using court form N5B for the accelerated possession procedure, and form N5 for the standard procedure.

Beware of the Tenancy Deposit and Property Licence

In addition, the notice will only be valid if any tenancy deposit was protected in an authorised scheme within 30 days of receipt and if the related prescribed information (PI) were given to the tenant.

A recent Court of Appeal decision (Charalambous and Karali v. NG & NG [2014]) has clarified that the requirements above apply to all ASTs, including those for which the deposit was received before deposit protection became mandatory (6th April 2007).
However, this decision did not settle the issue of any penalty for non-compliance in such case.

If the property is a licensable HMO, or otherwise subject to selective licensing, a further requirement is that the property must be licensed.

Common Misconceptions

1. “A section 21 notice is a notice to quit”

A section 21 notice is not a notice to quit and, as such, does not end the tenancy upon expiry. In fact, the notice has no effect at all on the tenancy, which continues.

This means that the tenant is legally entitled to remain at the property after the expiry of the notice.
But, this equally means that the rent continues to accrue and to be payable, and that the landlord is therefore entitled to demand it without prejudicing eviction proceedings.

What the notice does upon expiry is to entitle the landlord to start legal proceedings to seek of court order for possession.
Only when this possession order is executed by bailiffs will the tenancy finally end.

2. “The tenancy will end upon expiry of the notice”

No. A section 21 notice is not a notice to quit and has no effect on the tenancy.

First published .