Validity of section 21 notices – a flow chart

flowchart first page [Update 3 pm 03/06/2016 – improved flow chart with added HMO licensing section now at link below. Update 05/12/2016 – tidier version will small error correction. Update 07/03/2017 – correcting an error on s.21(4) notices.]

Don’t ask me why, in a moment of idleness, I foolishly thought I would do this, but I did…

The validity of section 21 notices (or technically, when one can be served) became simultaneously more complicated and less so after the Deregulation Act 2015 took effect, together with changes in deposit regulations. There is a lot to think through and of course it all varies by date of tenancy.

On the basis that a lot of tenants, a lot of landlords and letting agents and quite a few advisors haven’t really got to grips with current requirements for a s.21 notice to be valid, I thought a flow chart could help, assuming it was possible.

It turned out to be sort of possible- ish, as least as far as statutory validity goes. So here it is – PDF download

The usual disclaimers apply – it should not take the place of proper legal advice, or even be relied upon – guidance only.

It doesn’t cover every variation or eventuality (for instance, all the deposit stuff assumes no change in landlord, and s.21(4)(a) notices are an additional footnote).

The rules on service, named tenants etc. aren’t dealt with at all. Nor (for space reasons) does it mention that the Govt ‘How to rent’ booklet must be the most recent edition at the time the current tenancy started (and that is a tricky one to check but start here.)

The Ravenseft Properties Ltd v Hall [2001] EWCA Civ 2034 precedent on prescribed forms and notices ‘substantially to the same effect’ will probably apply to the post 1 October 2015 prescribed s.21 Notice (Form 6A) but given the necessary detail in the notes, I find it hard to believe that not using the Form 6A would not amount to defective notice, unless a very minor error or difference.

And because I couldn’t fit it in a box, there is no mention of the fact that for a post 1 October 2015 tenancy, it is impossible to serve a s.21 that will expire at the end of a six month fixed term.

I hope it is of use to all involved in PRS tenancies in England. I’ve added a page in resources section of the site. I may even update it come the next set of changes, or October 2018, whichever is earlier.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Housing law - All, Possession and tagged .

50 Comments

  1. I will second that – I run a Homelessness Service and this is the bane of our life trying to work it all out so BIG thank you!

  2. Good chart Giles – thanks for sharing with this with us.
    I’d like to make two suggestions.
    1 – The statutory requirement for the prescribed section 21 form – my reading of the legislation is that the landlord must issue the form or ‘or to a form substantially to the same effect’. ‘Exactly’ might be over-egging. (your page 3)
    2 – Notice of Requiring possession (section 2, HA 88). Purpose of the notice is to inform the tenant that LL requires possession. Its does not act or purport to end the tenancy – its a statutory information requirement with prescribed conditions of issue under section 21 – ie ‘not less than two months’ etc. In my reading, i cannot see how it can invalidate the notice that the Notice expires short of the end of the term unless the LL makes a specific statement within the notice that he ALSO considers the tenancy to be expired by the date given, or that he requires possession of the property by this earlier date. I have heard this opinion given elsewhere but am uncertain that this can be given as binding advice in all situations – happy to be persuaded. Not aware of any case law authority that supports this situation. (yr page 6).

    • Paul
      On 1. – I addressed that in the post:
      The Ravenseft Properties Ltd v Hall [2001] EWCA Civ 2034 precedent on prescribed forms and notices ‘substantially to the same effect’ will probably apply to the post 1 October 2015 prescribed s.21 Notice (Form 6A) but given the necessary detail in the notes, I find it hard to believe that not using the Form 6A would not amount to defective notice, unless a very minor error or difference.

      On 2. It would invalidate the notice because the s.21 gives a date after which (IE immediately after which) possession is required. If that is during the fixed term, that cannot be so. It is perfectly possible to give more than two months notice (though not within the first four months of a first tenancy), but the specified date after which possession is required cannot be during the fixed term. CF the notes to Form 6A “The date you are required to leave should be shown in section 2 below. After this date the landlord can apply to court for a possession order.”

    • On 2 – Sorry Giles – my mistake – got lost in the sphagetti!
      Agree this is the case for new style s.21 prescribed form – as this is what the form says.
      But this requirement not duplicated on old style section 21 (pre 1 October).

      This may now explain why we are starting to see judges (incorrectly in our view) reject the old style section 21 forms (used in conjunction with pre 1 Oct 2015 tenancies) on the basis of rules only present on the new form. Our view is that this complexity of logic is not sustainable for our current court process. Your excellent attempt to capture the logic in a flowchart demonstrates this point beautifully.

    • Well, the s.21(1)(b) requirement was to give two months notice in writing stating that (the landlord) requires possession of the dwelling house. It is impossible to meet that requirement without giving a point at which possession will be required. And if that is during the fixed term, it is obviously invalid as you can’t require possession during the term.

    • Thanks Giles. Agree, impossible using a traditional Oyez -style section 21 form wording where it says a date field is supplied, but surely not impossible per se.
      LJ Lewison in Spencer v Taylor does contemplate a validly served notice under s.21(1)b where there is no fixed point – in his judgment at para 11. We have used such notice successfully on many occasions but now withdrawn because of Deregulation Act 2015 confusion and section 21 complexity and revert to more std format.
      ‘The third condition that must be satisfied is that the landlord has given two months’ notice. Sub-section 21(1)(b) does not require the notice to expire on any particular date nor does it require a date to be specified in the notice.’ – Spencer v Taylor, 2013

    • Agreed that s.21(1)(b) doesn’t require a particular date, or a specified date. But conceptually, you cannot have two months notice of possession being required without an implied or derived date. So, ‘require possession at the end of the term’ – no specified date, but clear point possession required. ‘Require possession after the expiry of two months from date of service’ – no date specified, but clear point given. Simply stating ‘I require possession’ – well…

      Your original point was that a s.21 could expire during the fixed term. If no date is given for requiring possession (explicitly or derived), how can the s.21 be said to expire during the term? So, the point about two months notice and expiring at end of fixed term would stand, even on such a vague statement as ‘I require possession’ – it could not ‘expire’ till the end of the fixed term and must be served at least two months beforehand.

      Any notice which gave an express or derived date within the fixed term (and so expired during the fixed term) would be doubtful (at best), because giving a date for requiring possession which could not be the case.

    • Thanks Giles but not sure I’m with you on this one. The original legislation was poorly drafted. Because of the open wording, s.21(1)(b) allows LL to tell his tenant simply that ‘he requires possession of the dwelling-house’. He must have given the notice (now in writing) to the tenant not less than two months before the case comes before the court. It is our interpretation that If he fulfils this test (and the other two tests contained in the legislation of section 21), a court is generally required to award possession – subject to certain procedural requirements, depost protection etc. – for pre 1 Oct tenancies only.
      Section 21(1)a already provides the clear safety check that the AST has come to an end so any other implied rule is perhaps conjecture. So yes, a simple notice such as this can surely expire before the end of the fixed term provided it fulfils the three tests defined by LJ Lewison – which restate the legislation pre-Deregulation Act 2015. The notice requirement is for two months so it impliedly expires two months after the date the notice is given to the tenant. The section on many of the precedent section 21 forms with ‘possession required on or after’ is surplusage and additional to the requirement of the legislation. IF this wording is added, then I agree that the notice might fail.
      Agree that a date does need to be given under s.21(4) but even this does not require a fixed date (Lower Street Properties).

      I don’t want to distract further from your excellent post – and it has helped me to understand why some judges are having such difficulty making correct and accurate decisions on section 21 – the law is just becoming too complex for the layman or even general practitioner to follow – and that surely is bad law.
      On a point of interest, I’d be happy to send you our simple form section 21 in the spirit of the ‘Spencer v Taylor’ ruling which we have used successfully for section 21 claims for pre-Deregulation Act 2015 AST tenancies (although I am not advocating that others follow our style here because of the unconventional format).

    • This is a bit angels on the head of a pin, as practical effect is nil, but…

      s.21(1)(b) says ‘at least two months notice’, not two months strict, so you cannot presume ‘expiry’ after two months.

      You cannot ‘require possession’ during the fixed term – or the first 6 months – section 20(1)(b). And I would argue that you cannot start proceedings during the fixed term either, as you have no right to possession at that stage – for all that s.21(1)(a) refers only to date of court’s decision. (agreed on the bad wording, by the way).

      So, absent an explicit or derived date, I’d say notice has no point of expiry before the end of the fixed term.

    • Well, the angels did dance on this occasion – so the problem was as much real as theoretical!
      Enjoyed the debate. Keep up the good work. P

    • The previous wording of s.21 did not explicitly prevent legal proceedings from being started before the expiry of the fixed term, though, as it only stated that the possession order could not take effect before the end of the fixed term tenancy.
      The Deregulation Act explicitly removed the possibility.

    • Already dealt with in my reply to Paul. Statute might (inadvertently) allow it, but the common law won’t. You can’t issue a claim for something that you are not yet entitled to at the date of issue, even if you may be by date of judge’s decision. And also arguable as abuse of process.

  3. Absolutely brilliant. many thanks for the work you have put in.

    in page 1 box 3 HMOs there does not appear to be a follow up on p2 [or later] relating to s75 HA2004 .it is probably there but I cant find it.

    If you want make fully comprehensive, there would need to be space to cover select licensing such as in Croydon [nearly all private sector ASTs] s98 HA2004

  4. Great stuff Giles. Unfortunately Inside Housing is labelling this guidance on serving an ‘eviction notice’. Even if a lack of basic housing law knowledge is excusable someone clearly hasn’t read far down the page.

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  6. Very well done Giles…a valuable mental exercise I’m sure…..however you could have saved yourself a shed load of work by simply giving a link to the one already produced by NHAS!

    • Chris, false modesty to the winds, mine is both more up to date and covers more statutory issues than the NHAS one. Theirs is much tidier though.

  7. Well done Giles.
    However a minor point – question 2 on page 1 assumes there is a gas supply.

  8. I read this somewhere “A statutory periodic tenancy arising after the 1st October 2015 is not deemed to be a new tenancy”!! In effect what does this mean? That none of the new rules about serving a section 21 apply?

    • Yes, a tenancy that was a fixed term starting before 1 October 2015 that then became a statutory periodic after 1 Oct 2015 is still one where the old s.21 rules apply. On the other hand, a ‘renewal’ tenancy for a fresh fixed term will count as a post 1 Oct 2015 tenancy.

  9. Could you maybe help me?

    First of all, thanks for providing the information on this site – it’s really useful and helpful.

    I am on a periodic tenancy following a fixed term tenancy that began prior to 1 October 2015. Based on this I understand my landlord does not NEED to serve a Form 6a, but he has chosen to do so (actually the rental agency has served the notice as the landlord died last March). Anyhow, the Form 6a clearly states that it shouldn’t be used if we have not been provided with the “guide to renting” document. Obviously since our tenancy began well before 1 October 2015, that was not a requirement at the time it was started – BUT, given they chose to serve notice using a Form 6a, and the form clearly states it can’t be used unless we received the guide… does that invalidate our Section 21 notice??

    Also, notice was served on 27 January (posted on that date). The end date is 31 March. Our periodic tenancy periods go from 28th of month to 27th of following month. Now, my question is this – the government website (https://www.gov.uk/evicting-tenants/section-21-and-section-8-notices), updated 6 Jan 2017, clearly states that the notice must end on the last day of the rental period. I have read up about Spencer v Taylor, BUT, in that case there was no Form 6a involved (maybe that has no impact). Is my notice invalid for either or both of the following reasons:

    1. the end date is not the 27th of the month, which is the last day of the rental period
    2. given notice was only posted on 27th January, we therefore couldn’t physically receive it before 28th Jan (and arguably later as 27th was a Friday and we were away that weekend.. but anyway). By 28 Jan, we’re already into a new rental period, and therefor does the notice not need to take into account two full rental periods, ie the minimum end date would need to be 27 April?

    A lot going on here but leaving the flat is a real headache for us. We tried to purchase it but then backed out of the transaction and were then served notice. We don’t mind staying in the flat if they remarket if for sale and we’re looking for a property to buy ourselves, so leaving at the end of March and having to take a one-year rental is not practical at all for us as it puts is in a bad position as a buyer (can’t move quickly – v hard to compete with cash buyers on this basis).

    Any help is much appreciated!
    Noreen

    • We can’t offer advice on specific cases, but I’m afraid the s.21 isn’t invalid because of the how to rent booklet (or absence of it) or the end date.

  10. Thank you. Sorry I am just noticing the commen re individual issues above.

    I don’t understand though – it looks prety clear cut from the language (provided by the government)

    1. The form 6a itself that I was sent clearly states it can’t be used if the prescribed information has not been provided

    2. The Govt DCLG website, updated 6 Jan 2017, says:

    “Fixed-term tenants can’t be evicted until their tenancy ends. If the fixed term has expired the notice must end on the last day of the rental period”

    Who would you suggest as the best place to go to, to get a definitive answer on this, because I believe we must have some sort of case – it’s written in black and white.

    Many thanks again,
    Noreen

    • The DCLG Guidance is wrong, at least as far as s.21(1) notices go. (It would be right for a s.21(4) notice, but that isn’t at issue here). DCLG guidance has no bearing on the position in law, but the court of appeal does. Spencer v Taylor applies.

      The question with the Form 6A is whether is gives all the information necessary to comply with the requirements for a s.21(1) notice for a pre 1 Oct 2015 tenancy. It does.

      Whether there is additional information on the form which does not apply will not affect its validity. You will note that the headnote to the N6A says ‘must be used for post 1 Oct 2015 tenancies. May nevertheless be used for all ASTs’. I’m afraid that settles that. Besides, the headnote is to the landlord, not the tenant.

      If you still doubt the free view you have been given, you are very welcome to go elsewhere, in fact I would encourage you to do so. If people are going to argue with me, I want to get paid for the time.

    • Noreen – where you might have a more likely issue is who gets to issue possession proceedings. Has to be the landlord – the agent can’t. So, in this situation, has to be the landlord’s estate. But I don’t think they can unless they have grant of probate, as they have to prove title to the property.

    • Thank you very much. That’s worth looking into. The idea of reaching the stage of possession kind of gives us the heebie jeebies as we’re just normal professional people and don’t want any bad marks against us. Which is why I was hoping we could invalidate the notice somehow, because then it’s clearly an oversight on their part and just something we could use to delay our departure.

      I’m sorry that you thought I was arguing with you…I’ve just read so many conflicting things and it’s so hard to know where the buck stops. I’m running through my original contract and the deposit etc now to see if there are any oversights there we could use.

      What a nightmare. Don’t even get me started on why we pulled out of buying the flat. Their agent was unbelievably incompetent and pushed us into outbidding a bid that wasn’t even legitimate….grrrr.

      Thanks again, I appreciate your advice.

      Noreen

  11. as I recall (from many years ago) if the personal representative of an estae is an administrator/ix their actions are only valid from the date of appointment. If the PR is an executor/ix they have until the date of hearing to get probate as an executor’s appointment runs from death and is confirmed by the grant of probate.

    • Executors under a will can deal with property immediately (getting rent, etc). But some kinds of legal proceedings require grant of probate. Possession, I think, is one.

  12. The executor of the will is a relative of my deceased landlord, but he is not a beneficiary of the will (which I got online). What does “grant of probate” actually mean? Thanks again. Also, if my landlord’s name was updated on the TDS website details in April of this year, after he died and when the tenancy became periodic… would that have an impact on the validity of the notice?? I.e., I was checking to make sure the details on TDS website were all kosher, and I noticed last update was in April 2016, but is still lists the name of my decease landlord as the landlord, even though he died in March.
    Thank you.

  13. “Executors under a will can deal with property immediately (getting rent, etc). But some kinds of legal proceedings require grant of probate. Possession, I think, is one.”

    Possession is not one. the general principles are set out as follows

    Tristram and Coote’s Probate Practice:
    An executor derives his title and authority from the will of his testator and not from any grant of probate. The property of the deceased, including any right of action, vests in him on his testator’s death, and he can institute a claim, as executor, before he proves the will. He cannot obtain a judgment before probate, not because his title depends on probate, but because production of the probate is the only way that he is allowed to prove his title1. An executor may be substituted or removed in appropriate circumstances in accordance with s 50 of the Administration of Justice Act 1985 and the substitute gains his title from the order appointing him (see Chapter 41).

    Thompson v Reynolds ((1827) 3 C & P 123 ….
    ‘As to the power of an executor before probate, in Comyn’s Dig. tit. Administration, B.9, it is said, that an executor may commence an action before probate, though he shall not declare; and reference is made to the case of Wankford v. Wankford; and upon looking into that case it appears that the distinction is made because “when he comes to declare, he must produce in Court the letters testamentary”; and it is added, “the reason why an executor cannot go on before probate is, for the enforcing of probates, as is said in Hutton 31, because, upon probate, there are inventories exhibited, and other acts done by the executor, which are for the benefit of the creditors of the testator.” In Hensloe’s case ((1600) 9 Co Rep 36b), it is said [then follows a passage in law French] “Les executors ont lour title per le testament que est temporal, &c. quel testament est compleat quant a touts biens et chateaux in possession et reversion,” &c. “Mes quant a suer des actions in les Courts le Roy les judges ne admittont les executors a suer per choses in actions sinon que ils monstront le testament duement prove desouth seal del ordinary“. [The note continues:] The case of Duncomb v. Walter decides, that, if an executor arrest a man before probate, and afterwards prove the will, it is good by relation between the parties; but not as against strangers. And in the report of the same case it is said, “Where an executor brings an action before probate, yet, if he shews the probate upon the declaration, it is well enough.”’

    The general issue came up in possession proceedings in Re Crowhurst Park; Sims-Hilditch v Simmons – [1974] 1 All ER 991 when the there was no distinction drawn for possession proceedings.

    • Re Crowhurst Park; Sims-Hilditch v Simmons – [1974] 1 All ER 991 @ 1001
      Goulding J
      Had I strictly followed authority I should have adjourned the trial of this action until the plaintiff should have obtained probate in this country. ..

    • Issuing s.21 possession claim, then applying to adjourn for indefinite period for grant of probate? A high risk tactic. I certainly wouldn’t advise any estate to bring proceedings till grant certain.

    • Hi there,
      I have another question. My contract is not dated after 1 October 2015 BUT, the property has not had a gas inspection since 2014. So without referring to the new regulations’ requirement for a gas safety cert to be provided before or with any section 21 notice (I appreciate that only applies to contracts dated after 1 October 2015)… if the landlord has not met his obligation to carry out an annual gas safety inspection, would that render any section 21 notice invalid? Alternatively, if it does not… I assume any application for posession would be thrown out in the absence of said gas check done within the last 12 months? From what I understand it’s technically a criminal offence not to carry out the annual gas check, right?
      Thanks,
      ND

    • It is a criminal offence, but I’m afraid it makes no difference to possession claims for pre 1 October 2015 tenancies. It is not a defence.

    • I agree (subject to the need for possession and how far the probate application has got and how straightforward
      the probate is)

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  15. Excellent Chart and Thanks a Million for making it so easy. This is such a nice article for landlords being harassed by non paying tenants

  16. Reiterating excellent advice. and chart. Please could you clarify if the link to the pdf at the start of your article is the current version. It is dated 2.6.16 but you mention there have been 2 updates since you initially wrote it, the most recent march 2017

  17. Hi there, I wonder if you might help me with your opinion on this. I am on a periodic tenancy that arose at the end of a first further fixed term of an original tenancy, following the death of my landlord. My original tenancy agreement has a clause in it that states, in relation to early determination, that “for the purpose of this clause notice shall be treated as given only from the time of actual receipt by the party to whom it is addressed”. The current situation is this: we received court papers for an accelerated possession claim containing a section 21 notice (and witness statement from a process server) that we never received. Obviously the notice on the setion 21 had expired, thus the claim for possession. We really didn’t get any section 21 – apparently it was delivered into the communal letter box of our building, shared by three flats, but we question whether it was in fact delivered because it’s very unlikely we would have not seen it. Anyway… long story short we naturally submitted a defence to this claim, and we now have a court hearing date. Obviously nobody wants to go to court.. I think the solicitor for the executor of the landlord’s estate has tried to take a shortcut by getting a false statement of service, assuming when we got the court papers we would be intimidated into leaving the property without submitting a defence. Anyway… so now we have a court hearing date and even though I have made several arguments of why the document can’t be considered served to us… I am wondering if this clause in the original tenancy agreement makes it a very easy open and closed case. Ultimately, in relation to early determination, it says in black and white that notice shall be treated as given only from the time of actual receipt by the party to whom it is addressed. Naturally we didn’t sign anything to confirm receipt of this allegedly served section 21 notice. I suppose the question is, does the early determination clause in our original tenancy agreement still apply now that we’re on a periodic tenancy, and if you end a periodic tenancy does that still count as early determination? Or do those nuances matter at all given the intention of the statement is to say that notice is only onsidered as given when it is received. If the claimant cannot show evidence to the court that we RECEIVED the section 21, will that be the end of it in the judge’s eyes, ie no signature or proof of receipt meaning section 21 notice not considered served and the claim struck out? I have no experience of courts and I don’t want to get a solicitor if this point will basically result in the claim being struck out.
    Thanks for your thoughts,
    N

    • We can’t give advice on individual cases via the blog, I’m afraid. It says so just above the comment box. I’d suggest trying a CAB or the Shelter advice line.

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