A Section 21 is NOT an Eviction Notice
Since the Government's white paper titled ‘A Fairer Private Rented Sector’ was published in June 2022, there has been constant reference to a Section 21 Notice being an ‘eviction notice.’ The headline across government publications and the national press was and still is :-
“No-fault evictions to be banned in England from May” - BBC
“In just under six months, private renters will no longer face being served with a Section 21 ‘no-fault’ eviction notice.” - ““We’re calling time on no fault evictions” - Housing Secretary, Steve Reed & MHCLG
“If you get a ‘section 21’ eviction notice” - CAB
“You can use a Section 21 notice to evict your tenants” - .Gov.UK
“S21 notices have allowed landlords to evict tenants with two months' notice without providing a reason.” - Sky News
“Mr Pennycook has said that this means landlords will not be able to "arbitrarily evict any tenant with a Section 21 notice.”
All the above and so many more headlines, articles, reports, blogs are reporting on a point of law that is technically incorrect. A Section 21 Notice has never been nor ever will be an ‘Eviction Notice’.
The Housing Act 1988(1996) states as follows:-
21 Recovery of possession on expiry or termination of assured shorthold tenancy.
(1)Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied
(a)that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than [F114an assured shorthold periodic tenancy (whether statutory or not)]; and
(b)the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice [F115in writing] stating that he requires possession of the dwelling-house.
Note - There is NO reference to the Section 21 being an Eviction Notice; the HA 1988(1996) uses the terms:- recovery of possession, requires possession.
Why is this important & does it matter ?
The response is a resounding YES. Since it was announced that the Section 21 notice would be abolished, there have been countless statistics and reports stating that tenants had been evicted within 2 months, that the notice stated eviction would follow, that landlords were evicting tenants - all of which is legally incorrect.
The notice period for a Section 21 notice IS 2 months and requires a tenant to give the landlord vacant possession But, should a tenant fail to vacate, the landlord has 2 options: -
1. Do nothing and let the tenant stay or
2. Instruct solicitors to start Accelerated Possession Proceedings.
And it is important to note here that local authorities across the England have advised tenants to ‘stay put’ upon being served notice because should the tenant leave, they would be making themselves voluntarily homeless and they would not be rehoused.
If the landlord opts for Accelerated Possession Proceedings, the process from start to finish, with a landlord opting for no hearing, can take 8 - 12 months, depending on the courts. If the tenant puts in a defence, the process takes longer. If a court grants a possession order, and the tenant does not vacate, the landlord will need to apply for a bailiffs warrant. Again, time-frames can be as long as 6 months to obtain a bailiff date / eviction date.
In short, the information provided has been inaccurate because there is not one single tenant in England who has been evicted within a 2 month period. It is not physically possible for so many reasons - but the current government and previous governments, along with national press, PR, lobbyists, needed a ‘headline’ , a ‘story’ that would gain momentum like a tornado, and paint a dreadful picture of landlords forcibly removing tenants from their homes.
All the major news programmes and channels have interviewed tenants over the last 5 years confirming they have been served with an eviction notice, and they never were. There is a huge amount of information and resource for the 11 million tenants in this country and it’s surprising that very few commented on the following, even this week in the Times :-
Landlords cannot unlawfully evict a tenant (eg; change locks, harass, breach Quiet Enjoyment) without facing serious penalties
Shelter, CAB, Generation Rent - provide in-depth overviews of what a tenant needs to do should they receive a Section 21 notice
Local Authorities have a stay put policy for tenants and advise them to wait until they are evicted by bailiffs
Tenants can ONLY be LAWFULLY evicted if the court grants an order for possession. If the tenant does NOT vacate on the date granted by the court, the landlord MUST obtain a Warrant which then leads to eviction. The whole process from the date of service of the Section 21 notice to Eviction can take anything from 8 months to 2 years.
The press have a duty to fact check but clearly the correct process and the reference to a notice being served for vacant possession doesn’t quite have the same ring to it as a tenant being evicted in 2 months.