Which section 21 notice should I use and does it matter anymore?

Under section 21 of the Housing Act 1988 a landlord is entitled to recover possession of a property let on an assured shorthold tenancy as of right at the end of or after the expiry of the initial fixed term, so long as proper notice is given. There is no requirement for the landlord to show any default on the part of the tenant.

There are two subsections to section 21 of the Housing Act 1988 which prescribe different requirements which apply in different circumstances. The key differentiator is that under section 21 (1) the landlord need only give not less than two months notice, which does not have to expire on a particular day. Under section 21 (4) the landlord needs to give not less than two months notice but it must expire on the last day of a complete period of a tenancy. Generally speaking a section 21 (1) notice is used to terminate a fixed term tenancy and a section 21 (4) notice is used to terminate a periodic tenancy. The latter can sometimes mean a landlord having to give almost 3 months notice depending upon when notice is served.

A periodic tenancy arises at the end of the fixed term of an assured shorthold tenancy which gives rise to the question what is the appropriate notice to use?

In the case of Spencer and Taylor the Court of Appeal has given a helpful boost to landlords by clarifying that the s21 (1) notice may be used to terminate a fixed term tenancy at the end of the fixed term and may also be used to terminate the statutory periodic tenancy that arises thereafter, crucially this may save landlords some weeks when recovering possession and accordingly avoid some off the lost rent that often accrues in these situations.

The section 21 (4) notice is not dead though. It will still be necessary to use that to terminate pure periodic tenancies.

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About leaseholdlawyer

Solicitor
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