Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

After a Section 21 Notice Expires

We are often asked the question of what the situation is once a notice pursuant to section 21 of the Housing Act 1988 expires.

Thanks to the decision of the House of Lords in Knowsley Housing Trust v White it is known that a tenancy agreement for an assured or assured shorthold tenancy does not in fact come to an end until the Court Bailiff has executed an order for possession. Therefore the service of a section 21 notice does not in itself bring a tenancy to an end. This means that the measures of only referring to rent as mesne profits after the service of section 21 notice are not necessarily required (although they may be a good idea so as not to confuse busy District Judges!).

If a tenant wishes to stay after the expiry of a section 21 notice for a short period this can easily be dealt with by simply sending a letter advising the tenant that the landlord will not be enforcing the expired possession order until a specific date. Subscribers to the PainSmith helpline service will be able to obtain a suitable letter from the document vault on their website.

Section 21 notices have no finite lifetime in which they can be used, they oldest reported case involves a section 21 notice which expired 6 years before the possession action began. Therefore agents should not be overly focused on the section 21 notice and tenants staying on after it has expired and more on making sure they have not offered a new tenancy which might override the notice.

Filed under: England & Wales, FLW Article, ,

50 Responses

  1. Peter Smith says:

    Thank you for this clarification of a matter which does cause a lot of confusion for landlords and commentators on online forums.

  2. Trevor Hulme says:

    I assume from this, therefore, that once a Section 21 expires and the tenant continues to pay rent and the landlord continues to accept it, no new tenancy is created and the section 21 notice can still be enforced at any time in the future.

  3. PainSmith says:

    Yes. But this can be a slightly risky strategy as not all Courts will accept this.

  4. [...] 2010 by blog.painsmith.co.uk. See original post here To learn more about this post, visit the website. Filed Under: Landlord Tenant Tagged With: [...]

  5. ontological_shock says:

    “Yes. But this can be a slightly risky strategy as not all Courts will accept this.”

    But what is there not to accept?

    A s.21 does not end the tenancy, therefore the existing tenancy continues – as well as the tenant’s liability for rent – so how can accepting the rent lawfully due create a new tenancy or otherwise undermine the validity of the s.21?

    If the tenant moves out at expiry of a s.21, how does the tenancy/their liability end at that point (unless the s.21 also expires at the end of the fixed term)? Surely the tenancy must be formally ended either by the landlord enforcing a possession order, or by the tenant serving notice to quit?

    Or, there’s surrender. Does the s.21 (arguably) comprise an implied offer to surrender?

  6. PainSmith says:

    Unfortunately there is a big difference between the law saying something and a District Judge being persuaded that it is right.

    Where a tenant moves out on the expiry of a s21 notice they are voluntarily giving up the property which ends the tenancy under s5 Housing Act 1988.

  7. ontological_shock says:

    Which part of s.5 HA1988?

  8. DuraLex says:

    Reading this thread I am not clear on the possibility for the tenant to surrender the tenancy at any time following the expiry of a section 21 notice. Could that be possible? Could the landlord refuse? Must the tenant give up the property right on the expiry of the notice but not later for that to be possible?

    As a section 21 explicitly notifies the tenant that the landlord requires possession, could it be construed as an offer to surrender, as suggested by ontological_shock?

  9. PainSmith says:

    When a section 21 has been issued it states that the landlord seeks possession. Therefore if negotiations take place with regards to the early release or release in general from the tenancy that should not affect the validity of the section 21. However, negotiations should be conducted carefully as it is possible to invalidate a section 21 when you did not intend to, for example agreeing to extend the occupation for some weeks after the section 21 has expired.

  10. DuraLex says:

    Thanks for the reply. However, your reply seems to indicate that, oddly in my view, the expiry of the section 21 does not entitle the tenant to surrender the tenancy, and that the landlord’s agreements should still be obtained. Is that correct?

  11. PainSmith says:

    The tenant would only be surrendering if he was to take up the landlord’s offer contained in the s21 by leaving on the date it expires. Alternatively the tenant can give the usual notice allowed at common law or one period of the tenancy if the tenancy is periodic or can use the break clause.

  12. DuraLex says:

    Many thanks for this precision.

  13. Caetano says:

    I’m in a similar situation. I’m on a 12 months contract starting on 11/09/2010. It was supposed to expire on 10/09/2011, but on the first month of contract I have been served a section 21 notice requiring possession on 10/04/2011.

    Now I’m actually intending to move out of the flat in about 15 days, but I have not given notice to the landlord. Could I leave without given the 30 days notice based on the fact that I was supposed to leave when the landlord notice expire or am I still required to give the 30 days notice anyway?

  14. PainSmith says:

    Thank you for the query. No you are not required to give notice if you are leaving upon the expiry of the section 21. I assume that it has been served pursuant to a break clause and that it is valid.

  15. DuraLex says:

    “Where a tenant moves out on the expiry of a s21 notice they are voluntarily giving up the property which ends the tenancy under s5 Housing Act 1988.”

    Including for a s.21(4)(a)?
    Can landlord refuse the surrender?

  16. PainSmith says:

    The notices are served by the landlord so it is not a surrender. The notice states that the landlord requires possession on a certain date and the tenant can move out on the said date.

  17. DuraLex says:

    I am not saying that this is a surrender. But as, to paraphrase you, the notice states that landlord requires possession on a certain date and that the tenant can move out on that date, when indeed moving out the tenant would surrender the tenancy, or offer to.
    So basically my question was whether by moving out on the date the tenant would end the tenancy without the possibility for the landlord to refuse (e.g. on the ground that the tenant has not served his NTQ).

    [Apologies if I'm a pain, this s.21 issue is really bugging me]

  18. PainSmith says:

    If a section 21 has been served the tenant can move out without having to serve a notice.

  19. DuraLex says:

    Thanks again.

  20. Gem says:

    Can I briefly reopen this topic and enquire as to whether the tenants rent liability remains until the expiry of the Section 21 notice, if he need not serve notice to leave earlier than the prescribed Section 21 expiry date?

    I have always assumed so, just wanted to clarify!

  21. ontological_shock says:

    In Nov 2010, PainSmith said: “Where a tenant moves out on the expiry of a s21 notice they are voluntarily giving up the property which ends the tenancy under [s5(2)(b)] Housing Act 1988.”

    And in April 2011, “If a section 21 has been served the tenant can move out without having to serve a notice.”

    S.5(2)(b) says that a periodic tenancy will arise unless the tenancy is ended [either by a court order, or] by “a surrender or other action on the part of the tenant”. (I assume the surrender is either when a T vacates at fixed term expiry, or when a T’s offer to surrender before fixed term expiry is accepted by the LL, and the ‘other action’ is when a T exercises a break clause).

    If you mean that, in the case where a s.21(1)(b) notice expires at exactly the same time as the fixed term expires, then I agree that T vacating ends the tenancy; however, this has nothing to do with the s.21 notice (an action on the part of the LL).

    What about a s.21(1)(b) notice expiring after the fixed term expires or a s.21(4)(a) notice? How does T vacating at notice expiry end the tenancy? It doesn’t end because of s.5(2)(b), and LL cannot offer to surrender (only T can, and LL may accept or refuse), and we all agree that a s.21 notice does not, in itself, end the tenancy, so – how and why does the tenancy end by a unilateral ‘surrender’ on the part of the T?

  22. PainSmith says:

    The tenant’s liability remains until the end of the section 21 period or earlier if they have served notice and it expires sooner.

  23. PainSmith says:

    If a Landlord serves notice on the Tenant then the Landlord is seeking possession. If the Tenant acts on that notice and leaves on the date specified then its not unilateral surrender. The notice was served by the Landlord and the Tenant has simply acted on it.

  24. Lawcruncher says:

    Before the HA 1988 came into force a tenant under a periodic tenancy wishing unilaterally to bring a tenancy to an end needed to serve a notice to quit and nothing in the Act does specifically alters that. The question is therefore whether there is any justification for the view that a tenant served with a section 21 notice is entitled to leave (whether before or after the notice expires) without giving a notice to quit.

    The first point to make is that I cannot help feeling that if Parliament had intended that the service of a section 21 notice should give the tenant the right to leave without notice it would have said so in the Act. That is not of course conclusive and is at the most a string to my bow.

    The first argument that a tenant does not need to give notice to quit is that a section 21 notice is an offer to surrender. The first hurdle that anyone advancing that argument has to negotiate is to persuade a court that where an act requires a notice to be served that the notice serves any purpose other than that set out in the act. The HA 1988 provides that a section 21 is a preliminary to applying to the court for possession and no more. It is a bit of an oddity in that the act does not (specifically) provide for the notice to have any effect. It is certainly not a notice to quit and does not impose on the tenant any obligation to leave. The fact that the act requires the landlord to state he requires possession is no more than a matter of form.

    If we assume that a statutory notice can have a secondary purpose, then the next question is whether the wording amounts to an offer to surrender. Let’s suppose for a moment that the tenancy is not an AST. You write a letter to the tenant simply saying “I require possession of the property on…” I do not think that that is an offer to surrender, but rather an invitation to treat. There is not enough there to constitute an offer for a tenant to accept and in any event could only be an offer to accept a surrender on the date specified in the letter. If such a letter is not an offer to surrender, then a section 21 notice cannot be an offer to surrender.

    Even if the notice does constitute an offer, the tenant has to accept it for there to be an agreement to surrender. We then run into the problem of whether offer and acceptance comply with section 2 of the Law of Property (Miscellaneous Provisions) Act. They almost certainly will not because “a contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.” We can add that an actual surrender, as opposed to an agreement for surrender, needs to be made by deed or by operation of law, which involves unequivocal acts by both parties.

    I think therefore that following the service of a section 21 notice notice there can only be a surrender if:

    1. The parties specifically agree one.

    2. There is a surrender by operation of law. You need a scenario where there is something done by both parties which is inconsistent with the tenancy continuing or where one party does something inconsistent with the tenancy continuing and the conduct of the other party is such that it would be inequitable for the tenancy to continue. The tenant simply leaving the premises is not enough.

    The second argument that a tenant does not need to give notice to quit is that a section 21 notice gives the tenant an equitable right to leave because he is only complying with the landlord’s request. I initially found this argument attractive, but on reflection had to reject it. I repeat the point I made above: the HA 1988 does not provide for a section 21 notice to have any effect and the fact that the Act requires the landlord to state he requires possession is no more than a matter of form. Apart from that, it is an essential requirement of a tenancy that at any moment of time the parties know the earliest date on which it can be brought to an end. If after the service of a section 21 notice a tenant can leave when he chooses without serving a notice to quit (and whether you argue that he can leave before or after the expiry or date or both) that would fly in the face of a basic principle of landlord and tenant law. Of course statute can change basics principles of law, but there is nothing in the HA 1988 that changes the principle that the parties must know the earliest date on which a tenancy can be brought to an end.

  25. Lawcruncher says:

    Anyone have any comments on my post?

  26. Jo says:

    I was wondering if someone could help me? My mum gave 2 months written notice to her tenants to vacate the property. They contacted the council in case they needed emergency accommodation. 5 weeks after the initial letter the council contacted my mum to say her letter as illegal and a section 21 needed to be issued due to the council not being able to emergency house without it. The agent issued a section 21 notice which now gives them until 5 July to vacate. My question is – what happens on July 5 if they don’t vacate? They will in effect have had 4.5 months notice that we want to take back possession of the property.

    Information seems varied on the net and I would be so grateful if anyone could advise!

  27. PainSmith says:

    As long as the section 21 is valid you will get possession only once you issue proceedings. If you go to our website and click on “working with us” and then “possession proceedings” the information is there.

  28. Gabriella says:

    If I email my tenants with a proposed rent increase towards the end of their fixed-term contract, does that cancel the s21 I served towards the beginning? By offering a new tenancy I mean.

    I keep reading people saying that online but I don’t really understand why, I tried looking in the Housing Act but couldn’t work out what it was in there that allowed it.

    So I’m thinking if I ask for a rent increase, could the tenants reply “no thanks, we’ll stay for two months on the old rent”.

    So should I really be asking three months in advance so I have time to issue a fresh s21?

  29. Jodie says:

    Hi, Can I ask if a Section 21, can be served on any date during the last 2 months of a fixed term tenancy, so long as you are issuing a minimum of 2 months. To cut a long story short, i have missed the date to served tenants notice for the end of the fixed term so i would like to issue it a few days late. Am i correct ?

  30. PainSmith says:

    Yes, Section 21 (2) of the Housing Act 1988 provides that notice under s21 (1)(b) “may be given before or on the day on which the tenancy comes to an end”. This means that you can serve a s 21 (1)(b) notice right up to the end of the fixed term, even though the tenancy will have become a statutory periodic tenancy at some point before the expiry of the notice. Make sure you check your notice clauses though and take into account the deemed date of service and make sure you give not less than two months notice. Once the fixed term has expired you would need to ensure you comply with the requirements of section 21 ( 4) (a) in giving notice.

  31. Mario says:

    Hi. Could I ask a question please? I moved into a property with my wife, and another couple. The other couple have moved out, and we are in the process of buying our own property. However our L has now issued us with a S21 notice – which expires on 7th Oct. However, we have now agreed with the L that he won’t enforce the 7th Oct date and we can stay here for a few weeks (on periodic basis) until we complete on our new property. Does this effectively cancel the S21? Would he have to issue us another one if the worst happened and our purchase fell through – and we didn’t want to move out? Thank you

  32. PainSmith says:

    It really depends what was agreed, and how. Generally a landlord does not have to enforce a section 21 notice immediately it expires, and can enforce on it months ( or even years later). A landlord that says “I will not enforce on the section 21 until x date” can argue that rather than cancelling the notice he is affirming it but simply stating he will not use his right to enforce until a later date. If the landlord made representations that he was creating a new lease, rather than letting you remain in on the terms of the old one and/or if something happened to suggest a new lease ( e.g. you agreed to pay a higher rent ), then a new s21 notice might be prudent. You should however seek independent legal advice.

  33. David says:

    Oh dear oh dear. Can someone help?

    I moved into a property on 13th April 2012. A section 21 notice was served on the very same day (it is attached to the contract).

    I have been asking the agent, via email and by phone, for a new, written tenancy agreement since the beginning of September, and the assured shorthold tenancy expires next Friday.

    I do not trust the agent when (s)he says “the tenancy will just become a periodic tenancy” after expiration of the 6-month assured tenancy. I do not believe the person because of the presence of a section 21 notice.

    This is a bewildering matter, and my instinct is to take absolutely nothing “on trust”.

    So, the crux of it: does an AST become a statutory periodic tenancy after the expiration of said AST and the expiration of the s21 notice after the last day of the AST?

  34. PainSmith says:

    An AST becomes a statutory periodic tenancy after the expiration of the fixed term ( section 5 Housing ACT 1988). The AST will continue until either the tenancy is surrendered or the bailiff’s warrant is executed following possession proceedings.

  35. John says:

    My AST expires on 7th December but I have received a section 21 notice stated they want possession after 7 February. I would like to move out and not stay for another 2 months but can’t get into a new place until January, so the rent I paid on 7 December must cover me for the whole of that month, could I tell the landlord that I wish to move in January, as my new flat is not vacant until 6 January, if I did this would I need to pay anymore rent?

  36. PainSmith says:

    John, we suggest you take advice and often your local Citizens Advice Bureau can assist or sign post you to an advice provider

  37. Simon says:

    My tenant moved into property on 8 April 2010 on a 6 month tenancy. I served his a section 21 (1) (b) on the same day expiring on 7/10/2010. I never renewed his tenancy nor was there any change in rent. A few months ago he started falling behind in rent and was ignoring my calls & letters. I immediately went for accelerated procedure using that sec 21 (which I always new had no shelf life) I have now received a Notice of Hearing Reason for listing “an explanation is required of the fact that over 2 years has elapsed between the expiry of that notice and the issue of these proceedings” Hearing is on Monday. Can you please help me prepare for this. Please let me have details of any cases which were allowed using old section 21.
    Thank you

  38. Chris says:

    My landlord served a section 21 notice on my AST. The notice expired on July of 2012.( some 6 months ago)
    He has not enforced the notice -ie has not commenced proceedings but has written to say that if I wish to remain I should pay a higher rent. Has he by doing this invalidaded his section 21 notice?

  39. Jane says:

    My LL has started accelerated possession proceedings, my S21 expired in Jan 2013, am I still liable for rent or did my liability end when the S21 expired? (I am on a periodic tenancy was an AST)

    I would be grateful for any advice as I cannot seem to find the answer to my question anywhere.

  40. PainSmith says:

    Rent remains payable on an AST until the tenancy ends which will either be when you surrender or the bailiff executes the warrant.

  41. Hannah Slade says:

    My tenancy started on 3rd April 2012 and was a 12 month AST so expired on 2nd April 2013. On 15th March 2013, my LL served me a Section 21(1)(b) and dated the expiry 16th May 2013. Is this a valid notice as it does not give me two months on or before the rent due date? My rent is due on the 3rd.

  42. PainSmith says:

    Painsmith does not give specific legal advice. You should take the tenancy agreement and notice to your solicitor or housing advisor/ CAB. That said, the requirements of section 21 (1)(b) are that at least 2 months notice is given in writing – and this applies when the notice is served to activate a break clause or during the term of the tenancy (even if part of the notice period runs into the statutory periodic tenancy). There is no need for a notice served under s21(1)(b) to expire on the rental due date. That requirement kicks in when notice is served under s21(4)(a) ( if the tenancy has already become periodic when the notice is served).

  43. Sunflower2 says:

    On 24th April we were issued with a Notice of Possession to expire after the 28th June because LL wants to sell. Thinking we were nice tenants we immediate set to finding a new place. We found one and get to move in 24th May. We have paid rent up to 28th May.
    However, LL & agent say that technically we are still liable for rent until 28th June. This seems unfair – we are giving the LL what he wanted. He has offered that we pay 50% of June’s rent instead, and states that this is the fairest option – but we are giving him what he has asked for – an empty house!
    We want to move but are we really required to pay rent when really to us the S21 was an invitation to vacate the property. Nothing in the Notice for Possession states we are liable for rent and the original tenancy (which has been periodic for a number of years now) does not state anything explicitly.

    As it is, we only received the Notice for Possession by email as we didn’t get chance to go to main Post Office to sign for the paper version. Not that this matters – we want out, simple as that. And we see no reason for why we should pay any further monies when we are giving the LL what he has requested.
    Any advice gratefully appreciated

  44. I have got the eviction order on section 8 grounds,dated for 12th June but the tenancy agreement expires in two days- 31st May. I have told the tenant by text that I will be there to sign her out (section 21b was served more than two months ago), at 11am on the above date. What happens if she is not at home or vacated without telling me? Can I let myself in? And if she is not in can I take the possession of the property? Thank you MW

  45. Kelly fellows says:

    hi, was just wondering if anyone could advise.
    we had a s21 issued last march, informing us that LL wanted possession of property in may 2012, this was because intended to sell property!
    however as the property took a long time to sell, the landlord said we could stay on in the mean time.
    we spoke to him last week about a shower that has been faulty for more than 6 months and that its still not been repaired, he chose this time to tell us house is 3 weeks away from completing sale.
    tonight he informed us that he requires us out by 4/7/13 as sale will complete on 5/7/13. he has also stated that he expects the property to be in pristine condition.

    Is he legally allowed to tell us verbally that he expects us out then, also by through time we request our deposit back, he will no longer own the property, and he will try and with hold deposit for repairs that should have been carried oout by him long before now but he hasn’t bothered with!

    he has been such a shoddy landlord, we are happy to move, unfortunately we have no where to go before 27/7/13

    thanks in advance for any light that can be shed on this.

  46. Beverly Todd says:

    My daughter is a tenant on an AST which started 21 January. A month before the fixed term came to an end she was offered an extension by the letting agent at a cost of £60. They hassled her for this ‘admin cost’ and said that it would be a new tenancy for a fixed term of 6 months starting July 22nd. I asked why the existing tenancy couldn’t simply ‘roll over’. They said they wanted someone in there for a guaranteed six months. She paid the £60 but didn’t sign the extension as it wasn’t an AST for a fixed term at all. Because she didn’t return it signed they served her a S.21 notice on the 22nd July and with it, on a compliment slip the following ” If you return the tenant extension to this office by the end of office hours on Monday 21st September the Section 21 will be revoked. If we do not receive the extension the Section 21 will stand and you will have to vacate the property on the 22nd September 2013. Is this lawful?

  47. PainSmith says:

    We suggest that your daughter takes all the documents and seeks independent legal advice from CAB/solicitor. We cannot give specific legal advice on this blog.

  48. Ian Waugh says:

    I have a tenancy with no break clause that still has 5 months to run. In fact, I asked for a six-month break clause when I moved in but was refused.

    The landlord has now sold the property and has now issued a section 21 for me to leave in two months.Does the section 21 notice still have any effect, if no notice period or break clause is specified in the lease?

  49. PainSmith says:

    A section 21 notice can operate to activate a break clause but if there is no break clause then the earliest a s21 could expire validly would be at the end of the fixed term.

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