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Back to Basics 4: Section 21

A section 21 notice is not a notice to quit. Many people that call the helpline refer to a section 21 as a notice to quit even today and it’s not, so stop it!

A section 21 notice is used by the landlord when he wishes to gain back possession of the property at the end of an assured shorthold tenancy, pursuant to a break clause or even where the tenant is in the periodic period of the tenancy. There are two types of section 21 notices that a landlord can serve on a tenant. The section 21(1)(b) notice and the section 21(4)(a) notice.

Although both notices refer to section 21 they should not be confused with each other especially given that have very different notice requirements. If the wrong notice is served and relied upon then it can delay or hinder possession proceedings.

Depending on whether the tenancy is either of a fixed term or a statutory periodic will depend on which notice a landlord will need to serve.

The Section 21(1)(b) Notice – Fixed Term:

A section 21(1)(b) is served during the fixed term of a tenancy. A landlord serving this notice must give not less than two months notice stating that he requires possession. The notice should specify a date “on” which the landlord requires possession. The notice cannot expire before the end of the fixed term unless the landlord is relying on a break clause in the tenancy agreement. Therefore a notice should not be dated to expire before the last day of the tenancy as this would make the notice invalid and whilst it could be dated to expire on the last day of the fixed term there are many out there that believe that dating the notice to expire on the last day makes the notice invalid. We at PainSmith do not.

Other issues that need to be noted are that tenants have 6 months security of tenure and so a landlord can not issue court proceedings on a section 21 until the tenant has been in residence for 6 months. The other issue is that any notice served pursuant to a break clause should comply with the provisions of that break clause and then finally if the notice is served in the fixed term to expire in the periodic period it’s still a section 21 (1) (b) that needs to be served.

The Section 21(4)(a) Notice – Periodic Tenancies:

A section 21(4)(a) is served after the fixed term has expired when the tenancy is a statutory periodic tenancy. A landlord serving this notice must give two clear months notice stating that he requires possession and the day on which the notice expires must be at the end of a period of the tenancy. The section 21(4)(a) notice often causes the most confusion amongst landlords due to the fact that if the wrong date is specified on the notice then it becomes invalid. To avoid this pitfall it is vital that a landlord looks at the tenancy agreement to assess what the tenancy period is.

Some of you are aware that unlike a section 21(1)(b) a date need not be specified on the notice and instead the ‘saving provision’ can be used following the decision of Lower Street Properties Ltd v Jones however, rather oddly we still find some of you are dating the notice. Why complicate things?

5 Comments

  • Peter Smith 4th December 2011 at 8:23 pm

    Thank you for this, but some aspects are still not entirely clear. You say that a 21(1)(b) cannot expire before the fixed term end, but then that it must not be dated for the last day. My ASTA’s all expire at 11..00am. Why can I not date the Section 21’s for that date?

    Your last paragraph is enignmatic. Why not tell what a “saving provision” is and how to complete the notice without a date?

    • PainSmith 9th December 2011 at 10:56 pm

      We have come across problems with possession proceedings when ASTs expire at midday as opposed to just on x date and we recommend that you cease adopting this especially given that courts are reluctant to issue possession at present. We are coming across more and more “experts” who claim that a notice that expires on the last day of the fixed term is invalid but then that assumes that all tenancies must go periodic before a landlord can seek possession. This of course defeats the object of a fixed term. So whilst we have come across problems with s.21 (1) (b) notices that expire on the last day of the fixed term as a firm we do do this and have competent counsel to tackle any arguments about the validity of the notice itself. Taking that on board it is for you to consider whether you wish to date it on the last day or the day after.

      With regards to the saving provision Marveen Smith the principal of the firm provides training through ARLA on notices and you are encouraged to attend.

  • Steve Milesworthy 19th April 2012 at 8:14 pm

    If you are using a break clause to end a tenancy, can you do so purely by reference to the break clause, or should you also issue a Section 21?

    • PainSmith 20th April 2012 at 11:48 am

      If its a AST its a section 21 you serve pursuant to the break clause.

  • Claire 5th March 2014 at 9:29 pm

    If a tenant uses a break clause, does the landlord have to issue the S21? Thanks

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