Find out how to serve valid notice on a tenant using Section 21 and Section 8 notices, while staying in line with the latest regulations.
Most tenancies typically end by mutual consent: the landlord and the tenant agree on a move-out date, sort out the final rental payment, and… go their separate ways.
However, if that hasn’t been possible, don’t worry. There’s a three-step process for regaining possession of the property, and we’re here to guide you through the first step: serving notice.
Just a friendly reminder: this guide applies only to tenancies created in England after October 1, 2015.
- Beginning the eviction process
- The differences between Section 21 and Section 8 notices
- Can I serve notice during the fixed term?
- Does my notice need to expire at the end of a rental period?
- How do I serve a notice?
- Who can be a witness for service of notice?
- What happens if my tenant doesn’t leave the property?
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Beginning the eviction process
Landlords can kickstart the eviction process by delivering an eviction notice. ‘Serving’ simply means handing it over to your tenants while following specific rules.
There are two distinct types of eviction notices linked to different sections of the Housing Act (1988): Section 21 and Section 8. These notices set you on slightly different eviction paths. In most cases, serving either notice is usually enough to motivate tenants to move out without any further action.
It’s very important to pay attention to all the requirements when filling out the notice, as a mistake could completely invalidate it.
If you serve an invalid notice and your tenant doesn’t leave the property when the notice period ends, you’ll have to serve the notice again before you can take the next step: applying to court for a possession order. This extra step might add a few months to the time it takes to regain possession of the property.
The differences between Section 21 and Section 8 notices
Difference #1: Most of the time a Section 21 notice requires two months’ notice, whereas for a Section 8 notice, the notice period will depend on the ground used.
- The exception for a Section 21 notice is if the tenancy is a contractual periodic tenancy and the contract requires the rent to be paid in intervals of more than two months (quarterly, six-monthly, annually). In this case, the notice period will have to be at least as long as the rent intervals.
Difference #2: You don’t need to provide a reason or rely on a ground in order to serve a Section 21 notice. On the other hand, you must rely on one of the pre-determined grounds if you’d like to serve a Section 8 notice.
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Difference #3: During the fixed term, you can only serve a Section 21 notice in conjunction with a break clause and no earlier than four months into the tenancy, however, if one of the grounds apply, you can use a Section 8 at any time.
Difference #4: In order to serve a valid Section 21, you must have complied with certain conditions at the beginning of the tenancy.
Can I serve notice during the fixed term?
Absolutely, landlords have the ability to issue eviction notices while a lease is still in its fixed term – but it’s important to make sure that you’re using the correct kind of eviction notice.
You will need to use Section 8 to evict tenants during the term of a fixed term contract, unless there’s a break clause.
Generally, Section 21 notices are more popular as it isn’t necessary to provide evidence that a specific ground applies, unlike Section 8 notices.
Once the tenancy has turned periodic, you can go with either a Section 21 or Section 8 notice. But again, Section 21 remains the more popular choice in periodic tenancies because it doesn’t require you to rely on specific grounds.
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Does my notice need to expire at the end of a rental period?
No, it’s not required. Under the Deregulation Act 2015, a notice to terminate the tenancy can expire on any day within the rental period.
However, it’s important to be aware that if you serve a Section 21 notice while the tenancy is still in its fixed term, the notice must expire either on or after the end of the fixed term or align with any applicable break clause.
How do I serve a Section 21 notice?
You can serve a Section 21 notice effortlessly using our hassle-free notice-serving tool, available to all landlords, whether or not you initially set up the tenancy through our platform.
This tool provides a handy checklist of requirements you need to meet for a valid Section 21 notice. If you’ve used our tenancy creation service, Rent Now, it will automatically show you which requirements we’ve already handled and which ones still need attention.
‘Serving’ the notice is the legal way of saying that the notice was correctly delivered to the tenant. However, there are different rules to determine when the notice is legally received, known as the ‘deemed date of service’.
You can serve the notice in the following ways:
When you choose to send the notice via email, it will be considered delivered and received on the same day, as long as you send it before 4.30pm on a working day. If it’s sent after this time, it’ll be treated as received on the following working day.
To send a notice via email, you should first check the tenancy agreement to ensure that the tenants have given their consent to receive notices through email.
In OpenRent’s assured shorthold tenancies (ASTs), there’s a clause stating that the tenants have agreed to receive notices via email.
So, if you used Rent Now to create the tenancy, the tenants have already given their consent to this mode of communication.
You also have the option to send the notice through postal delivery. The deemed date of service for first-class mail is two days after the posting day, provided that day is a working day.
If the second day following the posting isn’t a working day, the notice will be considered served on the next working day.
For example, if you post the notice on a Friday, two days later would be a Sunday. However, since Sunday isn’t a working day, the deemed date of service would be on Monday.
It’s important that you keep evidence that you sent the notice. This could be as simple as taking a photo of the envelope, showing the correct address and proper postage.
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This method involves physically giving the notice to the tenant, placing it in an envelope addressed to them at the property.
If you personally serve the document before 4.30pm on a working day, it will be deemed that the tenants received notice on that same day. In any other scenario, it will be deemed received on the next working day.
Once again, you will need to keep evidence that you delivered the notice. You can achieve this by taking a timestamped photo of the Section 21 notice and another photo of it being handed to the tenant.
Alternatively, you can ask the tenant to sign a copy of the Section 21 notice as proof of receipt.
Left at address
Following the same process as described above, you can deliver the notice by leaving it at the property, like slipping it through the letterbox.
If you leave the notice at the property on a working day before 4.30pm, it’s deemed as served on that very day. Otherwise, it’s treated as received on the next working day.
Once again, you’ll need to provide evidence for this method. This might include taking a photo with a timestamp of the Section 21 notice and another picture as you slide it through the property’s door.
If you use a courier, be sure to request a copy of the courier’s dispatch note as proof.
You can also send the notice via recorded delivery. If the tenant acknowledges and accepts the delivery, the notice is considered served on that day.
However, it’s worth mentioning that this method is generally not recommended. If the envelope gets returned as undelivered, then the notice won’t be considered served. This can create more uncertainty than most landlords prefer to deal with.
Last but not least, you can consider hiring a professional service, often referred to as a process server, to take care of serving legal notices. They’ll also provide proof of service that landlords can use in court if required.
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Who can be a witness for service of notice?
Anyone is eligible to serve as a witness, but it’s advisable to select someone impartial, with minimal or no involvement in the situation.
Your co-landlord should be the last resort, followed by your spouse, family, friends, and individuals with an interest in the tenancy.
Ideally, you would have a police officer or other local official, but, as you can imagine, this won’t often be possible.
It’s important to ensure that the selected witness can potentially testify at any future court proceedings. If in doubt, you could ask a neighbour of yours or of the property.
What happens if my tenant doesn’t leave the property?
If your tenant hasn’t moved out of the property when the notice period ends, you can begin court proceedings.
Gaining a possession order is the next step in the three-step process to regain control of your property.