Private Sector Housing: Terminating a Tenancy under s21 of the Housing Act 1988

This seemingly, relatively simple piece of legislation can cause problems for both Agents and Landlords and a few simple precautions may avoid problems with the courts and as a result disgruntled Landlords.

S21 allows a landlord to regain possession of their rented property when a tenancy agreement has come to an end by giving two months notice to the tenant.

Proceedings can usually be issued using the Accelerated Possession Procedure under Part 55 of the Civil Procedure Rules. Using the Accelerated Procedure means that all the documentation is lodged with the court and so long as it is all in order and the tenant does not dispute any of the documentation and is unable to provide a good reason (e.g. special hardship) why the landlord should not be given an Order for Possession, the court will make the order without the need for a hearing.

Issues on the notice given is one of the most common reasons why proceedings may be dismissed outright or set down for hearing. Either way it incurs further costs for the landlord and possibly Agents if it is their mistake. Some of the more common reasons for claiming the notice is invalid are:

(a) It was never received - so much easier to ensure there is proof of the service of the notice which can be included in the court documentation
(b) The notice was served before the tenancy began
(c) An incorrect notice was served

Before discussing ways to avoid the above difficulties, it should be noted that under the Act there are two different notices which can be served and deciding which one to use is dependant upon whether the tenancy has expired or not when the notice is served.

If a notice is served during the course of the fixed term tenancy then a notice under s21(1) of the Housing Act can be served giving "not less than two months’ stating that he requires possession of the dwelling house". So long as the Landlord or Agent gives the two months' notice in writing the notice will be valid and does not need to specify a termination date – but if one is specified ensure that it is a date that is more than two months after the date of receipt by the tenant of the notice. The notice does not need to be in any particular form but most agents use a standard form.

If the tenancy has expired and has become a "periodic" tenancy then Notices under s21(4) must be given.

These notices must be more specific and must specify an end date and the date must be the last day of a period of a tenancy. Consideration should be given to including some appropriate 'fall back' wording in case the date specified turns out to be wrong. Again it is usual for Landlord and Agents to use a standard form but completion of it must be accurate.

Avoiding the problems
It is fairly common for Agents to attach a s21(1) Notice to the tenancy agreement at the outset. The tenant comes in to their offices to sign the agreement and is given a notice at the same time, often attached to the back of the tenancy agreement. They do not see the s21 notice attached, or claim that they did not see it, and when proceedings are issued, they claim that they have never received one. By putting an extra paragraph at the bottom of the notice "I confirm that I have received this notice on the.." etc. and having it and a duplicate copy to be kept on file signed by the tenant may avoid this. However, this won't help where you are sending a s21(4) notice in the post.

Even if you get the tenant to sign the bottom of the document it does not avoid a potential claim that the notice was served before the tenancy began. It is often the case that tenants will pop into the Agent's offices to sign documents before the tenancy has begun and service of the notice attached to the back of the tenancy agreement may defeat or at least cause argument in any action that the landlord wishes to take in the future.

To be absolutely safe and to avoid the above issues it is always best to serve the notice by recorded delivery post the day after the term of the tenancy has begun. In the beginning it is unlikely that a tenant would refuse to accept recorded delivery post and a copy of their signature can be kept on the file. If the recorded delivery was not accepted there would be ample time to consider and make arrangements to serve the notice by hand with the person serving it signing a certificate of the date time and circumstances of service for use in the court papers later.

As previously stated when a tenancy has become a periodic tenancy it is very important that the correct notice is served detailing the information required under the Act. Standard forms will usually incorporate all the relevant information but it is important to make sure that the dates are correct and/or have a fall back provision as described above. There must be two clear months and the date must be the last day of the period of the tenancy. Remember that it will probably only become a periodic tenancy if the terms are the same as the original tenancy, otherwise it is possibly a replacement tenancy and you are back to the beginning of serving a s21(1) notice and not being able to start proceedings until the further into the new tenancy.

Can you rely on the s21(1) Notice served at the outset during the periodic tenancy? The answer is 'yes', unless you have in any way invalidated the original Notice, for example by giving the tenant a new tenancy agreement, confirming in writing that the tenancy is now a periodic tenancy and you will give them two months notice if you want them to leave..

There are also other areas that can cause problems when seeking possession. For example:

Ensure the 'landlord' named in the tenancy agreement is in fact the person who is the legal owner or tenant of the property and has the legal ability to grant the tenancy and that where there is more than one they are all named as landlord;

Ensure compliance with legislation relation to deposit protection

Keep true and complete copies of the final signed agreement and other documents and, if appropriate certificates or other documentary evidence of service of notices so that these items can be included in the papers submitted to the court

I hope this helps and if in doubt it is always best to seek legal advice.

Rita Wright
Legal Executive
Housing Team

April 2010

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