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Landlords: Bulletproof Your Section 21 Notices

Mistakes in Section 21 notices are among the most common reasons for delays and increased costs when a landlord tries to recover possession from a tenant who has an Assured Shorthold Tenancy (AST).

Judges are well aware of the complicated statutory provisions that govern such notices. And the slightest mistake, such as an incorrect expiry date, is harshly dealt with, usually resulting in an order dismissing the landlord’s possession claim.

However, simple steps can be taken to avoid such errors and their costly consequences.

Statutory Provisions for Section 21 Notices
Section 21 of the Housing Act 1988 sets out the statutory provisions with which such Notices must comply. But problems drafting these Notices still arise for two main reasons: (1) there is no prescribed form for such notices, and (2) section 21 is poorly worded.

When drafting a section 21 notice, landlords must first decide whether the tenancy they have given to a tenant is within a fixed term or whether it is periodic. Depending on the answer to this question, the notice must be given either for a minimum period of 2 months ending on any day (subject to the length of the fixed term left to expire), or 2 months ending on the last day of a tenancy period. It is usually this last requirement, the ‘last day of a period’, that catches Landlords out and results in the wrong date being put in the notice making it invalid.

One Solution
One common device used to avoid the problem is to put an expiry date in the notice and then use a ‘saving provision’ in case that date is wrong. Common examples of such saving provisions include: ‘…or the last day of a period of the tenancy after the expiry of 2 months from the date of this notice.’

However there is a potential problem with such saving provisions. If the notice also includes an expiry date, there may be a conflict between that date and the saving provision. This may invalidate the notice as the tenant could argue that they were not sure of the applicable expiry date.

A Better Solution
To avoid falling into this trap, and subject to the wording of your tenancies, landlords should incorporate the following form of words into all section 21 notices, whether the term is fixed or periodic:

We give you notice that we require possession of the dwelling house known as [property address] after [expiry date] or after the Alternative Date set out below if the Alternative Date is different.

The Alternative Date is the first date after this notice was given to you which is:

(a) at least 2 months after the date this notice was given to you, and
(b) (if your tenancy is for a fixed term which fixed term has not ended when this notice is given to you) which is a date not earlier than the end of the fixed term, or
(c) (if your tenancy is a periodic tenancy when this notice is given to you) which is the last day of a period of your tenancy and not earlier than the earliest day on which, apart from section 5(1) of the Housing Act 1988, your tenancy could be brought to an end by a notice to quit given to you by us on the same date as this notice.
The use of the above form of words in all your section 21 Notices will ensure that such Notices are bulletproof in the future.

 This is a guest post for Upad. For more information, please contact Tim Crook at housing law services.

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Monday, 17 June 2019