What do you do if your tenant won’t leave when their section 21 notice expires?

This is the ninth in a series of 10 articles written by specialist landlord & tenant solicitor Tessa Shepperson, founder of the online Landlord Law Service.

What do you do if your tenant won’t leave when their section 21 notice expires?

As you no doubt know, section 21 of the Housing Act 1988 is the section which sets out the procedure under which landlords can evict their tenants at the end of the fixed term, even if the tenants have done nothing wrong.

This is one of the things which changed the housing market radically.  Previously, shorthold tenancies were created and landlords were usually stuck with tenants more or less forever, unless the tenant failed to pay rent.  The landlord’s right to recover possession of their properties under section 21 is a very important right.

The system was supposed to be fairly straightforward and simple.  Indeed, if you get it right it IS straightforward and simple.  Unfortunately, a number of unnecessary complexities were incorporated into the legislation, which makes it easy for unwary landlords to make mistakes.

Section 21 notices

To be able to recover possession under section 21, a landlord must first serve a notice on the tenant.  The notice should not be served at the same time as the tenancy is signed as the tenant might then be able to say that it was served before the tenancy was agreed – and you cannot serve a notice to end a tenancy which has not started yet.

It also must not be served before the tenancy deposit (if any) has been protected, and the prescribed information given to the tenant, or if your property is an HMO which needs licensing before a license has been obtained.

The notice must give the tenant not less than two months notice to vacate and must not end before the end of the fixed term.  If the notice is served after the fixed term has ended then there are a few other requirements, including the need for the notice to give a date which is ‘the last date of a period of the tenancy’, a requirement which has brought many landlords to grief.

Why has your tenant not left?
If you have served a notice on your tenants and they have not left, the first thing to do is to consider WHY they have not left.  There are a number of reasons.

They might not have received the notice
For example, if you served it by post it may have got lost in the post.  This does happen sometimes (although probably not as often as is alleged by tenants). This is why it is not a good idea to serve notices by post – there is no way you can prove it was actually delivered.  If you sent the notice by post and cannot prove delivery the only thing to do is to serve it again.  NOT by post this time.

They might be waiting to be re-housed by the Local Authority
Families, for example with young children, are entitled to be re-housed if they are evicted through no fault of their own.  However, if they move out before they are evicted they will lose this right.  So in this situation the best thing to do is just start the eviction proceedings as soon as possible, and move them along as quickly as you can.

They might be laughing at you because they know your notice is invalid
For example, through drafting errors.  There is a lot of advice available to tenants nowadays and if there is an error in your notice they will probably find out about it and if you issue proceedings they will hit you with a defence.  If they are right and there is something wrong with your notice you will probably lose the case and may be ordered to pay their legal costs if they used solicitors.    This is why you need to be very careful to ensure that your notice is correct.

They may not realise that you want them to leave
Many section 21 notices are served as a precautionary measure at the start of the tenancy but are never used.  They are just there so that unsatisfactory tenants can be evicted quickly after the fixed term has ended.  If you served your notice a long time ago the tenant may have forgotten all about it.  In these circumstances you should warn tenants that you need them to leave before issuing proceedings.

They may be hoping you will change your mind and/or have no-where else to go to
Most landlords prefer tenants not to leave as voids lose money.  Generally, if you do want your tenant to go, it will be because of something unsatisfactory about them.  This may well make it hard for them to find somewhere else and they may plead with you for more time.  However, if they are really unsatisfactory they are unlikely to change and it is best just to issue proceedings and get on with it, particularly if they are in arrears of rent.  It takes a long time to get an order for possession and rent arrears can quickly mount up to a large sum.

So the answer to the question ‘What do you do if your tenant does not leave’ will really depend on why the tenants have not left:

• In some circumstances they will not have left because they do not have to – i.e. if the notice has not been received or is defective in some way.  Here you will need to re-serve the notice, being more careful this time about how it is drafted and served.
• In most other situations you will need to issue proceedings for possession and in some cases (for example, if the tenants want to be re-housed and particularly if they are not paying rent) do this as soon as possible.

If you want to know more about section 21 I have written an eBook just on this subject.  At the time of writing this post I am still reviewing all the feedback received from my brief release of a ‘beta’ version last month, but I will be launching the final version shortly.  If this interests you, please join my mailing list and you will be kept informed of developments.  You can do this here.

Landlords needing to evict tenants will find some extra guidance here.

Other articles produced by Tessa exclusively for Property118.com are:

1. Have you got what it takes to be a landlord?
2. Make sure your property is legal before you rent
3. Check out your tenants or live to rue the day
4. Why you need to have the right tenancy agreement for your letting
5. All about tenancy deposits
6. How to increase rent the proper way
7. Help!  My tenant has stopped paying rent – what do I do?
8. I think my tenant has left, can I change the locks?
9. You are here | What do you do if your tenant won’t leave when their section 21 notice expires?
10. The various and wondrous ways that tenancies end.

Tessa Shepperson is a solicitor specialising in residential landlord and tenant law. She practices online via her web-site Landlord Law www.landlordlaw.co.uk and blogs at the Landlord Law Blog www.landlordlawblog.co.uk.

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