Section 21 notice
In England and Wales, a section 21 notice, also known as a section 21 notice of possession or a section 21 eviction, is a notice under section 21 of the Housing Act 1988, that a landlord must give to their tenant to begin the process to take possession of a property let on an assured shorthold tenancy without providing a reason for wishing to take possession. The expiry of a section 21 notice does not bring a tenancy to its end. The tenancy would only be ended by a landlord obtaining an order for possession from a court, and then having that order executed by a County Court bailiff or High Court enforcement officer. Such an order for possession may not be made to take effect earlier than six months from the beginning of the first tenancy unless the tenancy is a demoted assured shorthold tenancy. If the court is satisfied that a landlord is entitled to possession, it must make an order for possession, for a date no later than 14 days after the making of the order unless exceptional hardship would be caused to the tenant in which case possession may be postponed to a date no later than six weeks after the making of the order. The court has no power to grant any adjournment or stay of execution from enforcement unless the tenant has a disability discrimination, public law or human rights defence, or the case is pending an appeal.
Where a landlord is seeking possession on the basis of a section 21 notice where the tenancy is, or where there are successive tenancies on the same terms as, the original tenancy comprised in a written tenancy agreement, the landlord may bring a claim for possession under the accelerated procedure if no other claims are being made at the same time. Unlike a standard possession claim, the accelerated possession version is decided by a judge on paper without a hearing unless the paperwork does not appear to be in order, or the tenant has raised an important issue in defence. The mean time between claim for possession under the accelerated procedure being issued at court and eviction in 2019 was 27.4 weeks, with a median of 18.7 weeks.
Background
Security of tenure was first given to tenants of certain dwellings in 1915 by the Increase of Rent and Mortgage Interest Act 1915 as a result of housing shortage caused by World War I. Regulations on security were variously widened and tightened over the years. The Rent Act 1977 and the Protection from Eviction Act 1977 consolidated existing legislations and is still in force as of 2019. Tenants of regulated tenancies under the Rent Act 1977 cannot be evicted by their landlord without one of the grounds under Schedule 15 of the Act being satisfied. Notably, grounds for possession resulting from tenant's rent arrears is only a discretionary ground, meaning the court will only grant an order for possession if it considers it reasonable to do so.The Housing Act 1988 introduced assured tenancies and assured shorthold tenancies from 15 January 1989, the latter being a subset of the former. Like regulated tenancies under the Rent Act 1977, tenants of non-shorthold assured tenancies cannot be evicted without one of the grounds specified under the Act being satisfied, though there is now a mandatory ground for possession for rent arrears. Landlords of tenants with an assured shorthold tenancies however can apply for an order for possession from the court without specifying any reason so long as sufficient notices have been given to their tenants in accordance with section 21 of the 1988 Act. Assured shorthold became the default type of private residential tenancies from the commencement of section 96 of the Housing Act 1996 on 28 February 1997.
Requirements
Section 21 of the 1988 Act provides two different mechanisms under which a landlord can give notice to obtain possession of their property. In either case, since the coming into force of the 1996 Act, the notice must be in writing. An agent of the landlord may give the notice on behalf of the landlord. Where there are joint landlords, the notice may be given by any one of them. Where the occupier tenant holds a sub-tenancy, a superior landlord may not give a valid notice at a time when they are not the direct landlord of the occupier even if the mesne tenancy will have ended by the time the notice expire thus making the sub-tenant a direct tenant of the superior landlord. If the notice is served by a company, then it must be signed or otherwise executed in accordance with the Companies Act 2006.Subsection (1)(b)
Under subsection, the tenant must be given at least two months' notice that the landlord requires possession of the property. Where the tenancy agreement contains a break clause which allows for the tenancy to be determined before the expiry of the fixed term period, a notice under section 21 may be sufficient to determine the tenancy under the break clause. The legislation does not specify whether the notice may expire before the end of the fixed term in the absence of a break clause, and no clear precedent has been established on the topic.Until the Court of Appeal judgment in Spencer v Taylor, it was generally thought that a notice may only be given under subsection during a fixed term tenancy. The judgment clarified that a notice may also be given under the subsection during a statutory periodic tenancy that arise pursuant to section 5 of the 1988 Act on the coming to an end of a fixed term tenancy.
Private registered provider of social housing
If the landlord is a private registered provider of social housing, and the tenancy is for a fixed term of at least two years granted on or after 1 April 2012, then the landlord must have previously given a notice of at least six months that the landlord does not propose to grant the tenant another tenancy on the expiry of the current tenancy, and informing the tenant of how to obtain help or advice about the notice and outlining any obligations the landlord has to provide help or advice.Subsection (4)(a)
Under subsection, the length of the notice must be at least two months. The notice must state that possession of the property is required by virtue of section 21 of the 1988 Act, on a date after which possession is required. The date must be the last day of a period of the tenancy, and cannot be earlier than the earliest day an equivalent common law tenancy may be bought to an end by a notice to quit given on the same date.A notice stating that possession is required on a specific date rather than after the specified date is invalid. The notice does not have to state an actual calendar date. It is sufficient for the notice to be worded with a formula which enables the tenant to work out when the notice expires. Such a formula may be on its own, or used alongside a specific date as a saving formula in case the specific date is not valid. In the latter case, the notice is valid even if the notice give two different dates so long as one of the date is specified as a fall back in case the other date is invalid.
COVID-19
As a result of the COVID-19 pandemic, the minimum length of notice was temporarily raised from two to three months under section 81 of the Coronavirus Act 2020 for all notices served between 26 March 2020 initially to 30 September 2020. Following a decision by the Master of the Rolls with agreement of the Lord Chancellor, additional restriction came in on 27 March 2020 suspending all new and ongoing housing possession action nationally for 90 days.On 5 June 2020, Secretary of State for Housing, Communities and Local Government Robert Jenrick announced via Twitter that suspension of eviction was to be extended for a further two months. The announced extension was given effect through the Civil Procedure Rules 2020 which continued all new and existing stays until 23 August 2020. Following the direction of the Lord Chancellor on 20 August 2020, the suspension was further extended another four weeks to 20 September 2020.
The Welsh Government further increased the minimum length of notice for properties in Wales to six months from 24 July 2020. On 28 August 2020, the Coronavirus Act 2020 Regulations 2020 was laid before parliament raising the minimum length of notice in England also to six months. This change went into effect the following day, to end 31 March 2021. The end date of the temporary extension in Wales was later extended to 31 March 2021 to match.
Property licensing
No section 21 notice may be given if the landlord is required to obtain a licence, whether under a mandatory or additional licensing scheme for a house in multiple occupation or a selective licensing scheme for a designated area, while the property is unlicensed and an application for a licence is not pending.Tenancy deposit
The Housing Act 2004 introduced requirements on how a landlord must deal with any tenancy deposit taken in relation to the tenancy. A landlord may only require the payment of money as deposit. No section 21 notice may be given while any property other than money is being held as deposit.No section 21 notice may be given while a deposit is held that is not protected in accordance with an authorised tenancy deposit scheme. For a deposit that was taken between 6 April 2007 and 5 April 2012, the deposit was required to be protected within 14 days beginning with the date on which it was received. The Localism Act 2011 increased the time limit to 30 days starting from 6 April 2012. Additionally, the Localism Act 2011 Order 2012 provided for a 30 days amnesty period for existing deposit to be protected if a landlord was not already in compliance.
As well as protecting the deposit, the landlord must also give information as prescribed by the Housing Order 2007 to the tenant and anyone who paid the deposit on behalf of the tenant before a section 21 notice may be given. This information must be given by the landlord. It is not enough for the landlord to show that a tenant are able to obtain the information by their own enquiries.
For a deposit that was received from 6 April 2007, if the deposit was not protected in accordance with an authorised scheme by the required time limit, then the landlord must first return the deposit in full to the tenant or with such deductions as are agreed between them before the landlord may give a section 21 notice. Alternatively, a section 21 notice may be given if the tenant or the person who paid the deposit on behalf of the tenant has made an application to the county court against the landlord for a penalty under section 214 of the 2004 Act, and the claim has been determined by the court, withdrawn or settled.
The requirements to protect the deposit and giving of information applies afresh for every tenancy. Where there are successive tenancies between the same landlord and tenant, the deposit is deemed to have been returned by the landlord to the tenant at the end of the old tenancy and the tenant immediately paying the deposit to the landlord for the new tenancy. From 26 March 2015, if the successive tenancies are for the same or substantially the same property, a landlord is deemed to have complied with the requirements if at the start of a new tenancy the deposit continued to be held in accordance with the same authorised scheme as when the requirements were last complied with by the landlord.