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I WANT TO END THE TENANCY BECAUSE I WANT THE PROPERTY BACK
ENDING A TENANCY If you want to end the tenancy, simply because you want the property back, you must comply with the requirements of the Housing Act 1988 (as amended). The process is started by serving a section 21 notice. The âSection 21â refers to Section 21 of the Housing Act 1988 and it is often referred to as a Notice to Quit. It is the formal notice that a landlord can serve on a tenant to retake possession of a property at the end of an Assured Shorthold Tenancy. You do not have to provide any justification for serving the notice â that you want possession of the property is enough, but the formalities of the notice itself and the serving of the notice must be complied with. For further details see below.
The Housing Act 1996 made changes to section 21 of the 1988 Act by requiring that the Section 21 Notice be given to the tenant in writing. Section 21 stipulates different procedures depending on whether the notice is to be served before the end of the fixed term or after the fixed term has lapsed into a periodic tenancy. No order for possession will be issued by the court prior to a section 21 notice being served.
WHEN CAN A SECTION 21 NOTICE BE ISSUED? In short the landlord has the right to serve a section 21 notice to take effect at the end of a fixed term or during any subsequent periodic tenancy. If the landlord wishes to gain possession prior to a fixed term ending, he may be able to do this but will be required to serve additional notices and follow different procedures. For clarity the notice cannot take effect before the end of the fixed term, but can be served during the fixed term to take effect on expiry of the same.
SECTION 21 NOTICES SERVED DURING THE FIXED TERM OF THE TENANCY Section 21 of the Housing Act 1988 as amended by the Housing Act 1996 requires that the landlord provides tenants of an Assured Shorthold Tenancy (AST) with a minimum of two months’ notice in writing, stating that possession of the property is sought. The two months begins to run when the tenant receives the notice not when the notice was written/posted.
The provisions in relating to a fixed term are contained at section 21(1)(b) and state:
“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 a statutory periodic tenancy: 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 stating that he requires possession of the dwelling-house.”
For example as a minimum if the notice is served on the 15th February could not expire before 15th April. It is to be noted that if a section 21 notice is issued during the initial fixed term of a tenancy to regain possession at the end of the fixed term tenancy, then should the landlord decide to grant another fixed term, a new section 21 notice would be required to regain possession. Effectively a new fixed term destroys any prior section 21 notice. This is one reason why you should not serve the notice to quit at the same time as entering into the tenancy agreement. The notice can be served the very next day, subject to any deposit being protected as outlined above prior to the notice being served.
SECTION 21 NOTICES SERVED DURING A PERIODIC TENANCY Once the fixed term of the tenancy ends, unless a new fixed term is agreed upon a tenancy automatically becomes statutory periodic tenancy which rolls from week to week or month to month depending on how often rent is measured in the tenancy agreement.
The procedure for serving notice under section 21 of the Housing Act 1988 is slightly different in the case of statutory periodic tenancies and is contained in Section 21(4)(a) of the Housing Act 1988 as amended. It states:-
“Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied-
(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on whichâ¦ the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above “
The period of a tenancy depends on how often the rent is paid. If rent is paid monthly the period of the tenancy is one month, if the rent is paid weekly the period of tenancy is one week. The periodic tenancy begins immediately after the fixed term expires, so if the fixed term expires on the 15th then the period of the tenancy begins on the 16th, so provided rent was paid monthly, the last day of each period of tenancy would be the15th of each month. Therefore the Section 21 notice would have to expire on the 15th of a month and be served a minimum of two months before the 15th of that month.
If the tenant does not leave by the expiry date on the notice the landlord will need to apply to the County Court for a possession order. Provided the correct procedure has been followed by the landlord issuing the Section 21 notice, the court will have no choice but to grant the possession order. Note the language in the above sections, particularly the use of the word âshallâ in relation to the court making an order for possession â the court has not choice but to make an order for possession subject to the formalities being observed.
After the court has issued the tenant with the notice to leave, if they have still not left within the required period, then a landlord can ask county court bailiffs to evict the tenant.