The wrong notice has been served or it is missing essential information
(Note that I am not looking at expiry dates in this post, this will be looked at later).
The problem with drafting section 21 notices is that
- There is no prescribed form and
- The criteria set out in the statute is quite detailed
It is a great shame that there is no prescribed form, as if there was I think this would have prevented many of the problems that people have had with this notice over the years. Setting out detailed requirements and then not giving a standard format is asking for problems.
However sometimes the problem is that people are simply using the wrong notice.
The wrong notice
One problem that happens sometimes (not often but occasionally) is due to the imprecise way that people talk about serving a notice to quit when they actually mean a section 21 notice.
In a sense a section 21 notice IS a ‘notice to quit’ in that it is asking the tenants to leave or ‘quit’ the property. However a notice to quit is a special form of notice used for older tenancies and tenancies which are not assured or assured shorthold tenancies.
The legislation specifically says that notices to quit are of no effect here, so if you serve one, your tenant is entitled to ignore it. It will certainly not entitle you to an order for possession under section 21.
Sometimes also people come unstuck when they download free forms from the internet. For example there are different forms used in Scotland and some websites do not make this clear. If you use a Scottish form for an English property, again it will not be effective.
Missing information
As this legislation has been in force for some time now, we have probably had claims involving most if not all of the criteria set out in the act. Most of the challenges to section 21 notices involve the expiry date (which I will look at later). However a notice was once found to be invalid because it failed to say that possession was claimed under section 21 (required by s21(4)).
A tenant’s attempt to defend on the basis that the notice was not signed failed though, as this is not something required by the act.
I am not aware of any cases on any other missing information, but you should still be careful (if you are the landlord) to ensure that all tenants are named (including those who have moved out – so far as the tenancy agreement is concerned, they are still tenants), and the property correctly described.
However the act specifically says that one of joint landlords can give notice on behalf of them all, so the notice is probably valid if only one is named.
If you want to know more about section 21 you will find a lot of information in my ebook Assured Shorthold Tenancies : Your complete guide to section 21.
Ben Reeve-Lewis says
October 26, 2011 at 5:12 PMI think there must be popular but misleading website doing the rounds in landlord world as several times over the past few months I have been shown AST notices under “Section 33”, which is the Scottish version.
You would think that after 22 years in existence people would know by now.
Alice says
October 27, 2011 at 8:43 AMI’ve seen the Scottish version too recently, as well as a Northern Ireland one.
It’s also worth pointing out that even a section 21 notice on a scrappy piece of paper that doesn’t ‘look legal’ actually can be. A lot of tenants (and even sometimes advisors!) make assumptions based on how notices look, rather than what the actual wording is.
Another common misconception is that the section 21 notice ends the tenancy.
Tessa Shepperson says
October 27, 2011 at 9:50 AMThats very true Alice, although I have to say that people drafting up something themselves often DO make mistakes. At the least, it is probably going to irritate the Judge.
Not ending the tenancy – yes, which is why people worry about accepting rent etc or consider tenants to be ‘squatters’
Ben Reeve-Lewis says
October 28, 2011 at 7:07 AMYears ago I saw an NTQ written on an A4 envelope, complete with prescribed information so it was valid. Why the hell they didnt just buy one was beyond me.
I think I shall start a ‘Black museum’ of daft paperwork and have an illustrated article, strating with the many tenant notice to quits I see written on police notepads saying they will leave in 48 hours, that the visiting cops get them to sign to calm a situation down
JS says
October 28, 2011 at 10:55 AMBen, I can confirm that I would have things to add to your black library.
My favourite was a scrawled notice from a landlord telling his tenant that “it is agreed that the tennent [sic] will pay £500.00 in respect of rent and arears [sic] by 5th november or locks will be changed,” signed by both landlord and tenant.
That didn’t go anywhere, unfortunately, because the tenant bottled it.
Then there was the one where a dodgy landlord in a certain London borough named after the capital of the former Confederate States of America lockchanged while the tenant was out and put a phony bailiff’s warrant on the door.
Then there’s the tenancies written up as “licences” to try and circumvent the Housing Act 1988.