Section 21 notices: “use it or lose it”

The ‘use it or lose it’ rules at s21(4D) of the Housing Act 1988, which apply only in England, prevent a landlord from starting a possession claim more than six months after a section 21 notice is served. The rule that a section 21 notice would expire after a certain period of time was one of several changes introduced by the Deregulation Act 2015.

Previously there was no requirement to use a section 21 notice within any particular timeframe, and landlords were able to serve a section 21 notice at the very start of the tenancy, with the notice expiring at the end of the fixed term. If the tenant did not leave the property (or renew the tenancy, committing to new fixed term and possibly a higher rent), the landlord could at any time after the end of the fixed term (and without further warning) start court proceedings to evict the tenant.

Exception to the usual six-month rule

An exception applies to some notices given under section 21(4)(a) as set out at subsection (4E) – a longer validity period of four months from expiry of notice applies where there was a requirement for the section 21 notice to give longer than two months’ notice to the tenant. This situation can arise where the tenancy is periodic, and the period of the tenancy is quarterly or longer. In such cases a notice under s21(4)(a) must give longer than two months’ notice, and the exception to the usual six-month rule gives the landlord time to start a possession claim after expiry of the notice.

A complicated trap for the unwary landlord lies here. The distinction between a notice under s21(4)(a) or a under s21(1)(b) is largely academic due to the decision in Spencer v Taylor and s21(4ZA). However, the exception to the six month rule never applies to a notice given under s21(1)(b), and there will be cases, albeit not many, where the court will have to decide which form of notice the landlord has given to establish when the time to ‘use’ a section 21 notice runs out. This is going to be complicated because Form 6A (the prescribed form of section 21 notice) does not specify which type of section 21 notice it is.

Do these rules apply to a notice served before the ‘use it or lose it’ rules took effect?

The ‘use it or lose it’ rules initially applied to new assured shorthold tenancies granted from 1 October 2015 onwards, but since 1 October 2018 they have applied to all assured shorthold tenancies in England.

The extension of the rule to ‘old’ (pre-1 October 2015) tenancies also means that any section 21 notice, even if served before the Deregulation Act passed, cannot now be relied on. At least, that was the conclusion of the County Court at Central London in an appeal Majiyagbe v Singh and Sandhu (County Court at Central London, 30 August 2019) [reported in Nearly Legal and Legal Action].

In that case the section 21 notice had been served on 20 June 2011 when the tenancy began. The tenancy had been a statutory periodic tenancy after the conclusion of a six-month fixed term, and the notice expired at the end of that fixed term. A possession claim was only brought on 6 February 2019, and although at first instance a possession order was made, on appeal the order was overturned on the basis that s21(4D) applied and the proceedings for possession were started too late.

What does the landlord need to do before the time runs out?

Section 21(4D) states that “proceedings for an order for possession under this section in relation to a dwelling-house in England may not be begun after the end of the period of six months beginning with the date on which the notice was given”. Neither the Housing Act 1988 not the Deregulation Act 2015 specify what is required to begin proceedings.

Those familiar with the Limitation Act 1980 might assume that delivering the claim form to court before the deadline would be sufficient to start the claim in time, since this is how limitation deadlines are usually dealt with.

Paragraph 5.1 of Practice Direction 7A states that the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on the date when the claim form was received in the court office.

Does this apply to possession claim and the requirement to begin the claim within 6 months of service of the notice? It appears likely that it does not. While the Limitation Act 1980 sets out time periods in which a claim may be ‘brought’, subsections 21(4D) and (4E) do not use the words ‘brought’ or ‘bring’ – it states that a claim for possession may not be begun after the relevant amount of time.

Similar wording in a different Housing Act was considered by the Court of Appeal in Salford City Council v Garner [2004] EWCA Civ 364. Mr Garner was a tenant under an introductory tenancy, and Salford City Council had brought possession proceedings against him – the date when those proceedings begun was the crucial question when this case came before the Court of Appeal. Lord Justice Chadwick drew a distinction between starting and ‘bringing’ proceedings:

“What is required to begin proceedings is that the proceedings should be started. And proceedings are started by the issue of a claim form by the court. That, in this case, took place on 11 November 2002. In my view, that was the date on which the landlord began proceedings for possession for the purposes of s 130 of the Housing Act 1996.”

If the courts take the same approach with the time limit s21(4D) and (4E), and I strongly suspect that they will, the requirement will be for the landlord to get the claim form issued before the deadline and not simply to deliver the documents to court.

What if there are delays at Court?

If it is correct that a landlord must have their claim form issued before the deadline, this may create difficulties where the court has delays in dealing with incoming post. That is not uncommon, and delays sometimes stretch to several weeks. There appears to be no power for the court to extend time or to backdate the issue of a claim form, even where the delay is caused entirely by the court.

If the deadline is approaching, landlords could try to make a ‘counter service appointment’ with court staff to ensure that their claim is issued. That might be safer than issuing a claim in the High Court, where in general it is easier to issue a claim urgently. The additional costs of issuing in the High Court will be disallowed, and the High Court could simply strike the claim out on the basis that it is the wrong place to start a routine possession claim.

If the claim form is sent to the wrong County Court Hearing Centre, the court should issue it anyway and then send it to the correct hearing centre, but often in practice the court will in fact return the papers without issuing them and give instructions for where they ought to be sent.

All of these complications make it risky to delay issuing a possession claim for too long, particularly at courts known to have backlogs.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*