There is a lot of discussion about the terrible effect of section 21 notices on tenants. And how the two-month notice period is not really long enough for them to find a new home.
This was, for example, mentioned in Lewis Goodall’s otherwise excellent podcast on Britain’s hidden homeless children.
However, in point of fact, tenants DON’T have to move out at the end of the notice period. It’s not like an old-style Notice to Quit, which actually ends the tenancy.
So what is the law on this?
Tenancies continue after the end of the section 21 notice. The main significance of the notice period expiring is that it means a Judge cannot refuse to make a Court possession order – if the landlord applies for one.
That is, provided as the notice has been properly drafted and the landlord complies with all relevant legislation.
It is perfectly legal and proper for a tenant to carry on living in a property after a section 21 notice has been served – the actual deadline when they HAVE to move out, will not come until
- The landlord has obtained an order for possession (which could take anything between six months to a year or even longer), and
- The landlord has applied for a bailiff appointment (or perhaps an appointment with High Court Enforcement Officers (HCEOs), and the date of the appointment is here.
As many landlords will know very well, tenants are frequently still living at the property, totally legally, many months (or occasionally even years) after the section 21 notice period has expired.
Its not very nice having court proceedings brought against you, but it will give you longer to find somewhere else to live. And it is always possible that the landlord will lose his case if he has made a mistake on the form!
Note by the way that section 21 notices will become invalid if the landlord has not issued proceedings within 6 months (in most cases) of the date the notice was served on you. After that he will need to serve a new notice.
Do tenants suffer any penalty if they fail to move out?
Not really.
If the landlord actually brings proceedings for possession (and not all do), note that the section 21 procedure is just for possession.
Provided the accelerated procedure is used (which is normally the case) the landlord will not get a CCJ for rent arrears. If he wants this, he must make a separate application (see here how this would affect your credit rating). Most landlords won’t bother unless they think the tenant can afford to pay it.
True, the Court will, if asked, make a costs order.
- If the landlord acted in person, this will normally be just the Court fee, currently £391
- If the landlord was represented by solicitors, the Judge will just order ‘fixed costs’. Currently, these are approx £70 – which incidentally will normally be considerably less than the legal fees actually paid by the landlord.
However, even if a cost order is made, in my experience, it is rarely paid. Many, if not most, landlords don’t bother to pursue it, being content to recover possession of their property.
My understanding is that a costs order won’t normally go on the tenant’s credit record unless it is enforced through the court enforcement procedures. Although please correct me if I am wrong.
Note also that if you DO move out voluntarily after receiving a section 21 notice, you may prejudice your chances of being rehoused by the Local Authority.
If Local Authority rehousing is not an option, it is always possible that potential landlords may be prejudiced against you because you are being evicted. But if you explain the situation, they should understand.
Tip: see if your landlord will give you a good reference – if they want you to leave they will probably be willing to do this.
Check the notice
Another thing to mention here is that many, perhaps the majority, of Section 21 notices (particularly those drafted by landlords themselves) are invalid and unenforceable. Either because
- the landlord has not used the proper form, or
- because he has not completed it properly, or
- because he has not complied with the various rules upon which section 21 is conditional.
So, for example:
- If the landlord has not protected your deposit, or
- Has not obtained an HMO (if you live in a licensable HMO property), or
- Has failed to serve one of various documents on you, including the gas safety certificate and Energy Performance Certificate at the start of the tenancy, or
- Has charged an illegal fee under the Tenant Fees legislation
Your landlord cannot serve a valid section 21 notice until these matters have been rectified.
So tenants should ALWAYS seek legal advice on any section 21 notice served on them. In many cases you will find that you can safely ignore it because it is invalid.
And finally
Service of a section 21 notice does not mean the tenant must vacate immediately. There is no penalty for remaining (other than perhaps annoying your landlord!).
If you want to be rehoused by the Council, your best course of action is to sit tight and wait to be evicted (but make sure you speak to your Council about it before doing anything and get their advice).
Otherwise, you will, in most cases, need to vacate eventually. If your landlord has served a valid notice and actually brings court proceedings. But it won’t be for some considerable time.
So if you have just received a section 21 notice through the letter box, you can safely carry on living at the property for now. But do take legal advice,
For more eviction guidance for tenants, see the Renters Guide article here. See here for information on obtaining legal advice.
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