Why timing is important for s21 Notices

The rules governing Section s21 “no-fault” possession claims remain some of the most tightly regulated in the rental sector. A recent judgment in Paragon Asra Housing v Rainford provides a useful restatement of those rules and clarifies whether a Section 21 Notice can require possession before the end of a fixed-term tenancy.

Legal Framework

A Landlord can only rely on Section 21 where specific statutory requirements have been met, including, but not limited to:

·       Correct service of the prescribed Section 21 Notice (currently Form 6A);
giving at least two months’ notice to leave;

·       Compliance with Prescribed Requirements such as valid Gas Safety Certificates, EPCs, How to Rent Guide and Deposit Protection/Information

·       No outstanding prohibition notices that would bar the use of Section 21 (such as an improvement notice)

Crucially, the notice must not undermine the contractual fixed term as Section 21 allows Landlords to recover possession only at or after the point when the Tenant could lawfully be required to give up possession under the tenancy agreement.

Background

In Rainford, the Tenant was granted a 12-month starter tenancy, after which point it would become an assured tenancy. The initial tenancy was extended for a further 6-month term due to end on 25 December 2021.

On 5 August 2021, the Landlord served a Section 21(1) notice due to expire on 5 December 2021. The notice gave more than two months’ notice, but it specified an expiry date that fell before the end of the fixed term. No break clause existed and there was no contractual mechanism allowing early termination by the Landlord.

Court Decision

A Possession Order was originally granted, but the Tenant successfully appealed, and the Court dismissed the order, holding that the notice was invalid because:

1. A Section 21 notice cannot require possession before the end of the fixed term, unless a valid break clause has been exercised; and
2. The reasonable recipient of the notice would understand it as demanding possession on a date when the Landlord had no power under the tenancy to require it (therefore adopting the ‘Mannai v Eagle’ approach)

While this principle has long been implied in the statutory structure of the Housing Act 1988, Rainford provides further fresh and clear judicial restatement (albeit not binding). The Court made clear in this case plain that Landlords cannot use Section 21 to “cut short” an existing contractual term simply by giving the statutory minimum period of notice.

Practical Guidance for Landlords and Agents

The decision highlights the need for careful drafting and timing when serving Section 21 notices and Landlords should:

• Confirm precisely when the fixed term ends.
• Check whether a break clause exists and, if so, that all conditions for exercising it have been fulfilled.
• Ensure the date specified in the notice does not pre-empt the fixed-term end date.
• Verify compliance with all Prescribed Requirements
• Use the current prescribed Form 6A and serve it in a manner that can be evidenced.

Even minor errors can render the notice invalid, and Rainford demonstrates that the Courts will scrutinise Section 21 Notice closely where the timing appears inconsistent with the tenancy terms.

For further advice on Tenancy Compliance and bringing Possession Proceedings please contact our team at privatelandlords@msbsolicitors.co.uk