Evictions and Section 21

Being served with a Section 21 ‘Notice to quit’ is a stressful experience. Landlords don’t have to provide a reason for doing so, and tenants can feel helpless in the face of an intimidating process that can involve the courts. It is important to know that you don’t have to have done anything wrong to be served with such a notice – it’s the process by which any landlord can repossess the property. Knowing about how section 21 notices work, and how you can effectively resist them at least for a time, can help to make this experience a bit easier to deal with.

The information here refers to Assured Shorthold Tenancies (AST), which are common if renting from private landlords. The conditions of a Section 21 notice are laid out by the Housing Act of 1988. (If you have breached the tenancy agreement, a different Section 8 notice is served.) It’s important to check your tenancy agreement to make sure you know what kind of tenancy you’re in.

Basic conditions

If a landlord wants to evict a tenant, they require a section 21 notice. This is the first step in any eviction process. It gives the tenant two months to leave from the date the notice is served in writing. Here are some basic conditions that have to be met for the notice to be served:

Must give two months from the date the notice is served.
If tenancy is fixed term (6 or 12 months), it cannot be served before the end of the term, unless the tenant has breached the tenancy agreement.
If on rolling contract (a periodic tenancy) the notice must end on the last day of the tenancy period (usually the day before you pay rent each month, outlined in the tenancy agreement.)
Cannot be used after the landlord has been served an improvement notice by the council.
The landlord cannot forcefully evict you from the property, section 21 only grants authority to seek possession from the court (only court officials, bailiffs, can forcibly evict).
If tenancy started or renewed after October 1st 2015, the notice cannot be served in the first 4 months of a tenancy.

After the landlord applies to the court, they will send you papers, including a defence form, which you should complete and return within 14 days. Information in the rest of this section will help you with completing a defence form. You should try to include as much detail and evidence as possible, as this is often the only information the court uses to make decisions about a section 21. If you’re going to dispute the section 21 notice, it would also be a good idea to seek legal advice from an organisation such as Shelter or Brighton Housing Trust, as we are not legal experts and only offer this information based on our experience.

It is important to note that if the landlord is using an accelerated proceeding, the court won’t automatically give a date for a hearing. The court will decide whether a hearing is required based on the landlord’s claim and your defence form. If the landlord is using a standard possession proceeding, you will be notified of a date for a court hearing. There is normally only a hearing if the paperwork is not in order, or if there is an issue raised by the tenant.

Based on the application from the landlord, your defence form, and any hearing that takes place, the court can either:

Dismiss the section 21, which restarts the eviction process, giving you more time.
Order you to leave if the notice is valid. The court will send you a possession order, with a date by which it expires. You may also have to pay your landlord’s legal costs.

If the court issues a possession order, the order will usually say you need to leave your home within 14 days. If you have explained in detail on your defence form how leaving within 14 days could cause you 'exceptional hardship' – for example if you have a serious illness or disability – you may be able to get longer. If the court agrees that leaving your home would cause you exceptional hardship, they could delay the date you’ll need to leave by up to 6 weeks (42 days).

You don’t have to leave on the date the possession order states, but after this date the landlord can apply to the court to send bailiffs to evict you (more information below).

Identifying a Section 21 as invalid

While unfortunately a landlord is able to re-submit section 21 notices if it is invalid, an invalid notice provides tenants more time to work out what they want to do, and causes the landlord to go through another time consuming and costly cycle of admin. Bear in mind that if you choose to challenge a section 21 notice via the courts but the landlord’s application is upheld, you may have to pay court costs. That said, there are some quite straight forward ways to challenge a section 21 that are outlined below.

Since October 2015, measures have been introduced to attempt to stop revenge evictions when tenants complain about disrepair, and there is a stricter process for drafting section 21 notice. Ways of identifying the notice as invalid fall into two categories: small errors regarding the actual notice itself, and general conditions about the tenancy that the landlord may not have met.

Checking the notice for small errors that make it invalid

It may seem small, but if the notice is inaccurate, even to the point of containing a typo, it is invalid. The notice to quit also has to be written on the correct form.

Common errors:

Is your name spelled correctly?
Is the address correct?
Is the start and end date of the notice period correct? The start date should be when the notice is served to you, not when the landlord drafted the notice.
Are the name and contacts of the landlord and letting agent correct, if used?
Is it on the correct form?

The correct form for tenancies started or renewed after October 2015 is 6a. If the notice is not written on this form, it is invalid. It is also important to read the form carefully, to check that the correct sub-section has been used.

Tenancy conditions the landlord may not have met

These are not to do with the notice itself, but things that the landlord has to have done if they are to be able to serve a Section 21. These include:

Protecting the deposit. This needs to happen with My Deposits, The Dispute Service or Deposit Protection Service, within 30 days from receiving the deposit. If you have not been supplied with proscribed information about the deposit protection scheme, this also invalidates the Section 21.
If you live in house of multiple occupancy (HMO) that is not correctly licensed, then the Section 21 is invalid – you can check this with the council.
If the landlord has renewed the tenancy since they served a notice to quit, they require a new Section 21 notice.

If the tenancy was started or renewed after October 2015, the following conditions also apply:

The tenancy has started in the previous four months – the notice cannot be served in the first four months of a tenancy
If the tenant pays rent on a different schedule, then the section 21 notice must adhere to that rental schedule (i.e. giving you three months’ notice to quit if you pay quarterly, rather than two.)
Tenant can ask for additional information about the property, including energy performance certificate and current gas safety record. If these aren’t produced, you may be able to claim the notice is invalid, but the landlord can re-apply once this information is provided.
If the tenant has complaints about repairs.
The last point is important in the current climate of revenge evictions, so there is a more detailed section below.

Repairs and Revenge Evictions

Landlords usually want to make the most money out of their property for the least amount of time and care for tenants. That means that some landlords see repairs as a nuisance. They can look to silence tenants by evicting them, rather than addressing the conditions in the property. Refusing to carry out repairs reported by the tenant may constitute harassment from the landlord, which would invalidate the section 21 notice. If you have been served a notice to quit, and the following has happened, you may have good grounds for claiming it as invalid:

The tenant has reported issues and repairs in writing to the landlord
The landlord didn’t deal with the issues
The landlord refuses to do repairs and maintenance
The tenant has reported to the council for lack of repairs
The council has served your landlord with an improvement notice
The council has served a notice that they would do emergency works

If this is happening, retain evidence of the refusal to carry out repairs; keep copies of all correspondence, which you could print out and put in a file. Take pictures and videos of the condition of the property and date them. These may be helpful as evidence to send with a defence form.

There are a number of other things which might constitute harassment from the landlord to the tenant, for instance if a landlord is being insulting or rude towards the tenant, stopping services or removing previously available benefits, or being threatening and anti-social. It is best to try and record instances of this behaviour and seek legal advice about what to do.

After a Section 21 notice is served

If there has been no court challenge, and you remain in the property after two months, the landlord can then apply for a possession order themselves. If a court has already granted a possession order through a hearing, you may have had only two weeks to leave or find another place to live. You don’t have to leave on the day the order states, but after this date the landlord can apply for assistance from the courts to evict you using bailiffs.

You can stay in your home until court officials, bailiffs, come to your house, which will may happen after the date on the possession order, depending upon when (and if) your landlord applies to the courts. You don’t have to let bailiffs in unless it’s to do with criminal fines or tax. They are banned from breaking in, but if you let them in they can take your things. Police officers are not allowed to break in for them unless they have a warrant. If anyone tries to evict you without following the right procedure, they’re committing the criminal offence of illegal eviction. Police often wrongly think unlawful eviction is a civil matter, in fact it’s a criminal one and they have a duty to protect you.