Section 21 Notice Requiring Possession of an Assured Shorthold Tenancy in England

(The Housing Act 1988 as amended)

Under the Housing Act 1988 (HA 1988), a landlord who has granted an assured shorthold tenancy has a legal right to get his property back at the end of the tenancy. In order to invoke this right, he is required to follow the correct legal procedure which includes service of a notice (under section 21 of the Housing Act 1988) on his tenant.

Since the introduction of the HA 1988 section 21 has been amended by the Local Government and Housing Act 1989, the Housing Act 1996, the Anti-Social Behaviour Act 2003, the Housing and Regeneration Act 2008, the Localism Act 2011, the Deregulation Act 2015 and the Tenant Fees Act 2019!! As a result section 21 has become more complex and the Deregulation Act has caused uncertainty as to the requirements in England with regards to serving the prescribed section 21 notice and compliance with the prescribed requirements (e.g. giving the tenant the gas safety certificate, energy performance certificate and How to Rent Guide).

The Government have also in the past made unclear and last-minute changes to the prescribed section 21 notice, often issuing changes on a Friday to come into force on the following Monday!  This was a particular problem during Covid-19.  Due to the legal uncertainty caused by unclear changes made by the Government, the Letting Centre takes the view that is not possible to supply a version of the section 21 notice.  Since 2020, the only way for landlords and agents to use the correct ‘official form’ with some certainty is by downloading the latest form from the Government website.   Many legal experts disagree with the validity of versions produced by external providers and will only accept the Government version as being valid.  This is not an ideal situation when the success of a possession action can be determined by a dispute over the standard wording of the possession notice and is further compounded by current practice where the Government give little or no notice of the introduction of a new version of the prescribed form – hence making previous versions invalid.  Therefore the safest option is to use the latest version of the form on the Government website at https://www.gov.uk/guidance/assured-tenancy-forms   

Tenancies in England:

The notice requirements for tenancies in England were amended by the Deregulation Act 2015. The Deregulation Act has removed the requirement for section 21 notices to expire on the last day of a tenancy period (s21(4ZA) HA 1988) and a prescribed section 21 notice has been drafted for tenancies in England.

Section 21 of the HA 1988 requires landlords to provide tenants of an assured shorthold tenancy (AST) (whether fixed term or periodic) with a minimum of two months’ notice in writing that he wants possession of the property. Extra days should be added if the notice is to be sent by post as the two month period starts when the tenant receives the notice.

The notice must be served before a possession action can be started and in the case of joint landlords the notice can be given by any one of them. The notice cannot be given within the first four months of the original tenancy (s21(4B)) and possession under this section cannot take place during the initial six months of the original tenancy (s21(5)).

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 at least two months after the date that the notice was served.

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