The process for terminating ASTs is set out in the Housing Act 1988, which provides two routes to bring tenancies to an end:

1. the section 21 process – widely now referred to as “no fault” evictions – under which the landlord can simply serve notice to terminate the AST at or after the last day of the fixed term (or on a break date); or
2. the section 8 process, under which the landlord must demonstrate that certain grounds have been satisfied – such as a breach of the terms of the tenancy by the Tenant -  and obtain a court order terminating the AST.

Under the new Renters’ Rights Bill, all ASTs will become periodic tenancies, and landlords will need to demonstrate statutory grounds (many of which will echo the current section 8) for terminating such residential tenancies.

With the process for regaining possession of a property becoming more complex, many buy-to-let landlords have expressed unease about the potential inability to quickly take back possession of a property from a tenant who is not paying enough rent to meet the landlord’s mortgage obligations.  As such, Landlords looking to terminate ASTs ahead of the Renters’ Rights Act coming into force may be keen to use the section 21 “no fault” process while they still can.

Section 21 Process

In order to terminate ASTs under section 21, landlords do not need to demonstrate grounds for termination, and simply need to serve at least two months’ notice in the prescribed form requiring the tenant to leave the property by the date set out in the notice, failing which the landlord can apply to the Court for a possession order.

The section 21 notice does not have to expire on a particular day, and can be served before the tenancy expires, to take effect on or after the expiry date of the tenancy, or on a contractual break date.

Top 10 pitfalls to avoid

Despite the form of notice being fairly simple, there are various pitfalls to watch out for which can invalidate the notice:

1. Serving a section 21 notice in the first four months of the tenancy

A section 21 notice cannot be served within the first four months of the tenancy, and any notice served within that period will be invalid.

2. Failure to join Tenancy Deposit Scheme

A landlord who has failed to join a Tenancy Deposit Scheme or who has done so later than required by statute, and failed to provide certain statutory information to the tenant is in breach of their statutory obligations and, as a penalty for that, cannot serve and rely on a section 21 notice to terminate an AST without first remedying that situation.

3. Gas safety certificates and energy performance certificates

Similarly, landlords cannot lawfully serve and rely on a section 21 notice if they have not provided their tenants with an energy performance certificates (EPC) and a gas safety certificate, and any certificates relating to annual checks.

While landlords who fail to serve a gas safety certificate on tenants at the outset might be able to provide them at a later date, they must have been in place at the start of the tenancy.

4. Failure to provide “How to Rent” checklist

Landlords cannot serve and rely on a section 21 notice if the “how to rent” checklist – which sets out information about the rights and responsibilities of the landlord and the tenant under an AST - has not been provided to tenants.

While landlords who failed to provide this at the outset might be able to provide this at a later date, they may need to provide both the version of the checklist which was in place at the time the tenancy was granted as well as a current version.

5. Failure to comply with restrictions on imposition of tenant fees

The Tenant Fees Act 2019 restricts the payments that landlords and letting agents can require from tenants under ASTs, including the amount of tenancy deposit and holding deposit that can be taken and prohibitions on requiring tenants to enter into insurance or other service contracts with a third party.

Landlords who are in breach of the Tenant Fees Act 2019 cannot serve and rely on a section 21 notice to terminate the AST.

6. Retaliatory evictions

A section 21 notice will be invalid where, before that notice was served, the tenant made a written complaint to the landlord about the condition of the property and the landlord failed to respond within 14 days or failed to provide an adequate response, and served a section 21 notice terminating the tenancy following the complaint. The tenant can complain to the local housing authority that the section 21 notice was in retaliation for the tenant’s legitimate complaint, who can then serve a “relevant notice” which will invalidate any section 21 notice.

7. Length of Notice

At least two months’ notice must be given for the tenant to leave the property, expiring not earlier than the last day of the fixed term or a break date.  If relying on a landlord’s break option, it is advisable to serve both a contractual break notice and a section 21 notice to ensure the right to possession arises.

8. Form of Notice

The S.21 Notice must be in the form prescribed by statute, failing which it may not be valid.  The form of notice can be found on the UK Government’s website.

9. Proof of Service

In order to successfully evict a tenant if they fail to vacate by the date in the S.21 Notice, it will be necessary to prove to the Court that the Notice was properly served on the tenant.

10. Court possession proceedings and a writ of possession

Finally, even if they have validly served a s.21 notice and the deadline for the tenant to vacate has passed, a landlord should not attempt to take back possession by re-entering a property still occupied by the tenant or another formerly lawful occupier.  That is likely to be a breach of the Protection from Eviction Act 1977 and a criminal offence.

In those circumstances, the landlord will have to apply to court for a possession order against the now-unlawful occupier.  If the occupier still does not vacate after the possession order has been given by the court, then the landlord will need to acquire a warrant or writ of possession, which can then be enforced by an Enforcement Officer, authorised to take back possession.   

What to do if you want to terminate an AST

While the section 21 process is generally a swift and straightforward process, it is still subject to various pitfalls, not to mention the difficulties of dealing with tenants who refuse to leave a property even after all the right documentation and notices have been provided.  Landlords who fail to follow the process and (worse still) take matters into their own hands by simply changing the locks with tenants still in situ could find themselves facing prosecution.

With our wealth of experience and expertise in this area, we are happy to advise you on how to navigate the process, avoiding the pitfalls and ensuring as smooth a possession process as possible.

Authored by Tim Reid and Amy Dunn.