Section 21 notices in more detail

[MrShed]

I am intending this to be a sticky in due course, purely as Section 21 notices are the most common form of possession, and it would be useful for both landlords to know the pitfalls, and tenants - so they can successfully dispute them!!

It will be a bit messy at first, something of a work in progress, as the law is surprisingly complex. However I will tidy it up

I would appreciate it if anyone had anything to discuss about it they start it in another thread please

Under what circumstances can a S21 be served?

• A section 21 can only expire at the end of or after the initial fixed term tenancy.
• The notice must be issued on an unequivocal and unreserved basis. This means that the "Sword Of Damocles" practice(discussed below) is often invalid, as these notices are served on a conditional basis.
• The S21 must expire at the end of a rental period OTHER than when the notice is served during the fixed term.
• At least 2 clear rental periods notice must be given. This is almost always 2 months, however this does not have to be the case.
• An S21 can only be successfully served if either a Section 48 notice has previously been served, or if the tenancy agreement contains a contact name and address for the landlord in England or Wales(sorry all of this applies to E&W!)

[Ed999]

Section 21 notice has already been adequately covered in the sticky thread at http://www.consumeractiongroup.co.uk...-eviction.html

[Ed999]

Originally Posted by MrShed

The notice must be issued on an unequivocal and unreserved basis. This means that the "Sword Of Damocles" practice(discussed below) is often invalid, as these notices are served on a conditional basis.

What Court decision are you relying on as establishing this? I am not aware of any authority to this effect.

[MrShed]

First of all Ed, thanks for posting when I asked not to. Should I post in all of your sticky threads?

Also, it clearly hasnt, as half of what I have put above and a lot of what I am going to put is not present.

I take umbridge to this, you are not the only person allowed to contribute reference material to this forum.

[MrShed]

To my knowledge there is no case law regarding this.

However the legal argument is two pronged:

- The notice is effectively voided by a conflict of intent by the landlord.
- The notice continuing to be valid indefinitely would make a tenant insecure, and certainly would not give the tenant the security of tenure he would expect to have during such a tenancy. It would not be overly difficult to show that this could be construed as harrassment under the Protection from Eviction Act 1977.

In addition to this, some VERY highly regarded experts in the field(Marveen Smith is one who springs to mind) also are in this mindset - these experts are much more knowledgeable than you(with the greatest of respect) or I. I would also say that the experts in question back BOTH of my points above, not just one or the other.

I am normally a stickler for the whole "case law" scenario. However, I am fairly positive that once a relevant case does in fact reach the relevant court, that a case law will be created.

In addition(although a side issue), there is a draft law in progression which would explicitly state what is, in my opinion, strongly implied in current legislation.

[Aequitas]

I start by saying that I think the law ought to be what Mr Shed thinks it is. However, I do not think it is what he thinks it is.

Let's look at section 21(1) of the HA 1988 (as amended):

21 (1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—
(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and
(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice in writing stating that he requires possession of the dwelling-house.

It seems to me that if a notice is served the court has no power to make any enquiry as to the landlord's intentions when the notice was served. It can only ask the question: "Was the notice served?" If the answer is "yes" and all the other conditions are satisfied, then I cannot see how the court can refuse to make an order for possession.

The purpose of a S. 21 notice is (one assumes) to give reasonable notice to find alternative accommodation and I agree that that purpose is rather lost if a S.21 notice is served at the very beginning of a tenancy and, a fortiori, if a statutory tenancy has been in existence for several years. Unfortunately, the draftsman did not see fit to include (a) a requirement that notice should only be served when possession is actually required and/or (b) a requirement that court proceedings need to be begun within a specified period of the notice being served and/or (c) a requirement that notice cannot be served until the tenant has been in occupation for a specified period and/or (d) anything else that would stop landlords serving S. 21 notices too early so as to effectively deny the tenant reasonable notice. I do not think the courts can remedy the defect given the clear wording of the section.

I add that the practice of serving a S.21 notice before the tenant goes into occupation is questionable. The requirement is that the notice be served by the landlord on the tenant and (unless the tenancy has been created by deed) the tenancy does not begin (and therefore there is no landlord or tenant) until the tenant goes into occupation. (If anyone doubts this is correct I invite them to consider the wording of S.20 (2) (c) which refers to "the person who is to be the landlord" and "the person who is to be the tenant".)