A recent County Court decision has confirmed that a section 21 notice will be deemed invalid where the notice requires a tenant to leave their home before the end of a fixed term.
Paragon Asra Housing v Rainford has provided guidance as to the validity of a section 21 notice requiring the tenant to leave the property on a date prior to the end of their fixed term.
On 25 June 2020 the tenant was granted a 12-month "starter" assured shorthold tenancy, which was extended for a fixed term of 6 months, expiring on 25 December 2021. On 5 August 2021, the landlord served a section 21 notice on the tenant. Due to Coronavirus, the minimum notice period at that time was 4-months and it required the tenant to leave the property on 5 December 2021. The landlord commenced possession proceedings on 25 January 2022 and a possession order was made on 15 May 2023.
The tenant appealed the decision on the basis that the notice required the tenant to leave the property on 5 December 2021, which was 20 days before the tenant's fixed term ended.
Form 6A( i.e. a section 21 notice) includes the following statement:
"If you do not leave your home by the date given in section 2, your landlord may apply to court for an order under Section 21(1) or (4) of the Housing Act 1988 requiring you to give up possession."
At first instance, the issue of the validity of the section 21 notice had not been raised by the tenant and Paragon argued that the tenant could not therefore claim on appeal that the decision was "wrong" .
Nevertheless, HHJ Hedley allowed the appeal, as there was "some other compelling reason for the appeal to be heard". The validity of the section 21 notice was therefore the main issue. Despite the landlord not commencing possession proceedings until after the fixed term had ended, the date that the notice required the tenant to leave the property was before the end of the fixed term.
HHJ Hedley determined the question to be considered was whether by failing to state a date after which possession proceedings could be commenced, the section 21 notice was invalid. He commented as follows:
- The Reasonable Recipient – the notice required the tenant to leave the property after 5 December 2021. A reasonable recipient would not understand that this was an error and would assume that Paragon would be able to apply for possession proceedings after this date.
- Purpose – one of the purposes of a notice is to give a tenant notice that their landlord will be commencing possession proceedings. The notice must be completed correctly so that the date after which the tenant is required to leave the property is an accurate representation of the landlord's entitlement to commence possession proceedings. By requiring the tenant to leave after 5 December 2021, the section 21 notice did not accurately reflect Paragon's entitlement to commence possession proceedings.
Additionally, HHJ Hedley noted that there was "no practical reason" for the Notice to not state that the tenant was required to leave after 25 December 2021, which is the date that the fixed term ended and the date after which the landlord would be entitled to commence possession proceedings.
Consequently, the section 21 notice failed to reflect the landlord's true entitlement, so could not be relied upon in a claim for possession.
Whilst this County Court decision is not binding, it clarifies the Court's position that a section 21 notice that requires a tenant to leave their property before the end of a fixed term is invalid, regardless of whether possession proceedings are not commenced until after the fixed term has ended.
Any landlord using section 21 notices to gain possession of a property should ensure that the date specified as the date after which possession proceedings can be commenced is after the expiry of the fixed term, so as to avoid the risk of a possession claim being dismissed. As relevant parts of the Renters Rights Act 2025 are shortly to come into force, it is all the more important that landlords in the private rented sector ensure that section 21 notices are valid; once in force, fresh Notices correcting any errors cannot be given, and landlords will need to rely on a discretionary ground for possession instead.
