Trips and slips with Section 21 Notices

The agent, landlord or lawyer must comply with the requirements of the deposit protection rules. To serve a valid section 21 notice the deposit must be protected and prescribed information served pursuant to section 213 of the Housing Act 2004 as amended by the Localism Act 2011 within thirty days of the tenancy starting or the deposit being taken whichever is earlier. If the deposit is not protected then a valid section 21 notice cannot be served until either the deposit is handed back to the tenant in full or with agreed deductions. If the Prescribed Information (“the Information”) has not been served then a valid section 21 notice cannot be served until the Information is served . (N.B. doing the above will not avoid any potential claim for failure to protect the deposit).

Notices need to be served in accordance with the terms of the notice provisions in the tenancy agreement; such as notices being served by first class post deemed served two working days later. Notices served pursuant to a “break clause” must comply with section 21 (1)(b) of the Housing Act 1988 AND the provisions of the clause itself. The courts will interpret the terms of a break clause strictly.
Another major hurdle relates to notices served pursuant to section 21(4)(a) Housing Act 1988. It is easy to get the date wrong, where the fixed term runs from different dates to the rent payment date. The courts have approved a “saving provision” whereby the notice can ask for possession “ after the end of the period of your tenancy which will next end after the expiration of 2 months from the service”. The believed end date is included within an accompanying letter.
If the property requires licensing under part 3 Housing Act 2004 for a House in Multiple Occupation (“HMO”) being selective licensing of residential properties. A licence will be required or an application in the pipeline before service of a section 21 notice.

Top Tips to serving a valid section 21 notice:
1. Check that the deposit is registered and Prescribed Information served BEFORE serving a section 21 notice.
2. If the deposit is not protected then hand the deposit back to the tenant either in full or with agreed deductions.
3. If the deposit is in a scheme but the Prescribed Information not served, serve the prescribed information BEFORE serving the section 21 notice.
4. Check the tenancy agreement for the service of notice clause. Does notice have to be served in a certain way? If so, do it.
5. Is notice being served pursuant to a “break clause”? Follow the requirements of the clause.
6. If the tenancy is periodic the 21(4)(a) notice use the “saving provision”.
7. Don’t cut dates too fine. A longer notice period might be quicker than re-serving a notice.
8. Check the HMO licensing requirements with the local authority.
9. Rent: Continue collecting the rent and passing it on to the landlord.
10. Make the landlord aware a section 21 is a notice seeking re-possession not forcing the tenant to move out without possession proceedings. The notice allows the judge to grant mandatory repossession in Court

11 Comments

  • Mitch 9th November 2012 at 3:20 pm

    Does the Section 21 notice have to be signed by the tenants at the begining of their tenancy or will the signature of the Managing agent and witness suffice.

    One of my specific instructions to the MA, before completing the letting, was to ensure that the tenants signs the Section 21 notice when they are signing ASH agreement. This was not actioned.

    The MA stated that as long as the tenant has been forwarded a Section 21 notice with his signature and he has a proof of posting, it is not necessary for the tenants signatures.

    Is this correct?

    • PainSmith 11th November 2012 at 12:15 pm

      A section 21 notice is a notice from the landlord(s) stating that they require possession of the property on ( or after if the tenancy is a statutory periodic tenancy) a certain date. It does not need to be signed by the tenants ( unless you are serving pursuant to a break clause which stipulates that it has to be)

      You should look at the tenancy agreement to see whether the notice is validly served. If it allows for posting by first class post then you can do so.

      A section 21 notice would be invalid if served before the agreement is entered into and also before the deposit is protected and prescribed information served.
      Courts have been known to dislike s21 notices served at the beginning of a tenancy even where you can prove it was served after all the above is done, on the basis that tenants do not have the end of tenancy in mind when they are entering into a new tenancy.

  • Robin Millard 12th November 2012 at 10:17 am

    Hi
    You state the steps must be taken where
    “within thirty days of the tenancy starting or the deposit being taken whichever is earlier. ” Where does this interpretation of earlier come from? I ask because an circumstances where a tenancy starts and is is agreed that the deposit be paid at a later date, (a not uncommon ocurrence), should the deposit be paid say 31 days after tenancy is commenced (ie the following month) it would be impossible to comply without lodging a deposit you have not yet received.

    • PainSmith 12th December 2012 at 1:38 pm

      If the deposit is taken after the start of the tenancy (and the agreement makes clear this is what is to happen) then we think it would be 30 days from when you actually received the deposit

  • Mr P 11th December 2012 at 12:00 pm

    Can a section 21 notice be served electronically legally? There are various solutions, that will track when an e-mail has been opened by the recipient (date & time stamped) – would this suffice as proof of acknowledgement for Court?

    • PainSmith 12th December 2012 at 1:32 pm

      Your starting point is to look at your tenancy and how it provides for notices to be served. If silent we do not believe currently that electronic service would necessarily amount to good service.

  • s kaur 3rd February 2013 at 12:44 pm

    My section was struck out as INVALID and the tenant has claimed 3 times the deposit under section 8. Can I pay 3 times now and serve another section 21? He is hellbent on keeping possession. He would not cash the three times cheque or deny recving. He had shelter behind but represnted himself and defended . Any costs can stop section 21 cdonclusion , i need to serve after conculsion. How do i do it?

    • PainSmith 5th February 2013 at 6:20 pm

      To date there is little guidance we can give where a tenant refuses to take back the deposit. Clearly Parliament cannot have intended this to be a way for tenants to stay in a property indefinitely. Suggestions include handing back the deposit in cash with witnesses amongst others but as you can imagine there are obvious drawbacks to this ( denial of receipt being one of them). We would suggest instructing solicitors to minimise the risk of the tenant defending a further claim.

  • Ej 3rd April 2013 at 4:51 pm

    I have just renewed my tenancy agreement for another term and the agents also served section 21 notice to vacate, however without the last date of the tenancy. I have objected that this section is invalid and for sake of the landlord should have a last date of the tenancy. They replied that they have been advised by their Property Lawyer during recent cases that they are not required to put the tenancy expiration date on a section 21 notice, as it expires at the end of a term. If the Landlord chooses to invoke it, I will be then informed of the date in which your next term expires, and when you are due to vacate.
    I believe that this was incorrectly served – can you advise?

  • Safyan 9th April 2013 at 2:00 pm

    A s.21 notice has been served. However, although we have given more than 8 weeks notice, the notice ends on an incorrect date. Instead of ending on a monday (rent payment date) it ends on a Friday. However, the notice does say “after 5 April 2013”. Will I have to re-serve the notice?

    Many Thanks

    • PainSmith 9th April 2013 at 7:44 pm

      Painsmith does not give legal advice on this blog. The rules surrounding service of section 21 notices are quite complex and you should take all the paperwork to your solicitor and be able to answer questions re, amongst other things, whether the tenancy is in a fixed term, and if not then how often rent is paid.

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