Giving Notice under section 21 of the Housing Act 1988

Where possession is sought at the end of the fixed term of an AST tenancy, or where the tenancy is a periodic or statutory periodic tenancy, the landlord is required to serve a notice on the tenant under s.21 of the Housing Act.   There are two slightly different procedures (and forms) for serving notice under s.21:

Section 21(1) notice - fixed term tenancy

A notice in accordance with s.21(1)(b) is required where the notice is served on or before the last day of the fixed term.  (If the fixed term has ended, and a statutory periodic tenancy has arisen, the follow the procedure for periodic tenancies below).  The notice will state that the landlord requires possession, and must be given with at least two months' notice.  It may be given before or on the day on which the tenancy comes to an end.
It is important that the notice is dated correctly.  The earliest date for expiry of the notice will normally be the day following the last day of the tenancy on the basis that the tenant is entitled to remain in the property until the last moment on that final day.

Notice under this subsection can be served on  a tenant at any time during  the fixed term of the tenancy (but not before the fixed term begins) providing the tenant receives the minimum two months' notice.  This is the case even if the two months notice ends after the tenancy agreement has expired.  For example, if notice requiring possession is served on the last day of the tenancy agreement, the tenant does not have to give up possession of the dwelling-house until two months after the date that the notice was served or until the date written in the notice if it is further than two months away.  This notice merely has to state that the landlord requires possession.

Section 21(4) notice - periodic tenancy

The procedure for recovery of possession of a property let on a periodic tenancy (whether as a statutory or a contractual periodic tenancy) is similar to the s.21(1)b procedure described above, but with important differences. The rules for recovery of possession are defined within section 21(4) of the Act, and comprise three key conditions:

Firstly, a minimum of two months notice is required.
Secondly, the expiry date specified in the notice must be the last day of a period of the tenancy.  The period of a tenancy depends on how the rent is determined in the tenancy agreement.  If the rent is paid monthly, then the period of the tenancy is one month.  In order to find out what day is the last day of the period in a particular tenancy it will be necessary to refer to the original fixed term tenancy.  The periodic tenancy begins immediately after the fixed term expires.   E.g.  where the period of the tenancy is monthly and the original fixed term ends on 2nd March, then the first day of the periodic tenancy is 3rd March.  Thus, the last day of that period would be the 2nd day of the month following.
Example:  Using the example periodic tenancy above, a landlord decides in the middle of March that he wishes to terminate the tenancy.  If served immediately, the earliest expiry date that can be given on the s.21(4)a  notice requiring possession is 2nd June.

The third condition only affects periodic tenancies where the period is longer than two months (e.g. quarterly or annual tenancies), and requires that length of the notice given must also comply with the common law rules for periodic tenancies (i.e. three months' notice for quarterly tenancies, and six months' notice for annual tenancies).
Confusion often arises where the periods of the tenancy do not co-incide with the rent due day (due to the old common law rules of terminating periodic tenancies on the rent due day).  Thus, in the example above, the fact that the rent is payable on the first day of every month does not affect the dates to be given on the notice.
N.B.  Incorporation of a 'saving clause' within the s.21(4) notice can help to avoid errors due to incorrect dates.

Notice under section 21 - other issues

Six month rule
The Housing Act 1996 introduced a number of important changes relating to assured shorthold tenancies (see above) The new style assured shorthold tenancies created on or after 28 February 1997 may be created for any length of time but are subject to a restriction that an order for possession cannot be made pursuant to s.21 'so as to take effect earlier than .... six months after the beginning of the tenancy'

With these new style tenancies, proceedings may be commenced within the first six months (after expiry of the notice) although any possession order granted by the court can only be granted after this time.

Break clauses
Where, the tenancy agreement contains a break clause allowing the option to break during the fixed term, the landlord may exercise this option in conjunction with service of notice under section 21(1)b. It is possible to invoke the break clause and give notice under section 21 in the same document provided the notice is properly drafted so as that this intention is clear to the tenant.

Notice under section 8
It is not necessary to serve a notice of intention to commence proceedings under section 8 in addition to the s.21 notice, although there appears to be nothing to prevent them being served either together or at separate times if the landlord requires to have the option of using either route. Where the notice of possession is properly and validly served under s.21, the court must award possession.

Notice served prior to agreement
Some landlords serve the notice under section 21 at the same time as signing the tenancy agreement. This is not strictly correct and where the notice is handed to the tenant before the agreement has been completed or the tenancy has commenced, it can be rendered invalid. The s.21 notice should always be served after the term of the tenancy has commenced.

Periodic tenancies - use of saving clause in s.21 notice

The requirement for service of notice under section 21(4)a for periodic tenancies is that the day on which the notice is stated to expire must be the last day of a period of the tenancy. To avoid the possibility for confusion and error in entering an incorrect date on the notice, some practitioners incorporate what is known as a 'saving clause' within the notice.

Example: (following original example for giving notice on periodic tenancy on page 9)

Notice dated to expire on: " 2nd day of June 2002 or at the end of the period of your tenancy which will end after the expiry of 2 months from the service upon you of this notice."

Such a saving clause ensures that the notice remains valid even if June 2, 2002 was not the last day of a period, then the notice would take effect on the next valid last day of a period two months after service.