Restrictions on serving Section 21 Notices
20th June 2019
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20th June 2019
In recent years, we have seen a plethora of regulation over residential lettings, in particular Assured Shorthold Tenancies (ASTs), many of which restrict a landlord’s ability to serve and rely on a Section 21 notice to seek possession of its property on non-fault grounds.
The purpose of this week’s Legal Update is to serve as an aide-memoire of those restrictions, to ensure that landlords and their agents can rely on a Section 21 notice, and avoid difficulties down the line. It is, of course, still open to a landlord to serve a Section 21 notice where these restrictions have not been complied with, in the knowledge that it would not be a valid notice that could be enforced later.
The restrictions which inhibit a landlord’s ability to serve a Section 21 notice are :-
If the property is a House in Multiple Occupation which requires mandatory, selective or additional licencing, no Section 21 notice can be served until the licence has been applied for or obtained. The landlord should check carefully with the relevant Local Authority what the requirements are for their area.
2. Tenancy deposits
The landlord must have complied with the tenancy deposit rules in order to rely on a Section 21 notice.
Generally this requires the deposit to be protected in a government approved scheme and the prescribed information in connection with the deposit (including any leaflets provided by the scheme) to be given to the tenant (and anyone who paid the deposit on the tenant’s behalf) within 30 days, although this timeframe is only 14 days for deposits taken prior to 06 April 2012. Different timeframes apply to deposits taken prior to 06 April 2007, when the tenancy deposit rules came into effect.
Where the deposit is not protected in time or at all, no Section 21 Notice can be served until the deposit is returned to the tenant. Serving the prescribed information late does not prevent a Section 21 Notice from being served, although the landlord may still face a claim for financial penalties.
3. The Prescribed Requirements
The landlord must have given to the tenant a valid Gas Safety Certificate before the tenant takes up occupation of the property and following each annual gas safety inspection, and an Energy Performance Certificate for the property, otherwise it is unable to serve a Section 21 Notice.
Where the landlord fails to provide the Gas Safety Certificate prior to the tenant taking up occupation of the property, it is unable to serve a Section 21 notice at all, i.e. this cannot be remedied later (see our Legal Updates from 23 May 2019 and 14 February 2018).
4. How to Rent booklet (‘the Prescribed Information’)
The landlord cannot rely on a Section 21 notice unless it has first given to the tenant the Government ‘How to Rent’ booklet that has effect for the time being. There is no requirement to provide further copies throughout the tenancy, but a further copy will need to be provided on renewal if the copy provided has been superseded.
The current version (from 31 May 2019) can be found via the following link:-
5. Housing Enforcement Notices
A Section 21 notice will be invalid where the provisions on ‘retaliatory evictions’ apply, e.g. where a relevant housing enforcement notice has been served by the Local Authority in response to a complaint made by the tenant (see our Legal Update from 18 September 2018).
6. Tenant Fees Act 2019
No Section 21 notice may be served where the landlord has taken a prohibited payment in breach of the Tenant Fees Act 2019, unless and until that payment has been returned to the tenant. The Tenant Fees Act 2019 applies to new ASTs from 01 June 2019, and to all ASTs from 01 June 2020 (see our Legal Update from 28 February 2019).
There appears to be some debate as to whether the rules on ‘Prescribed Requirements’ and ‘Prescribed Information’ as above apply to ASTs granted prior to 01 October 2015 owing to discrepancies between the Deregulation Act 2015 and the relevant Regulations. However, until this issue is resolved, landlords should ensure they do comply in order to avoid any later (costly) disputes.
Form 6A and time limits
The new form of Section 21 notice (Form 6A) to be used from 01 June 2019 can be found via the following link :
A landlord is prevented from serving a Section 21 notice within the first 4 months of the AST.
If proceedings for possession are not commenced within 6 months from the date the notice was served, the Section 21 notice will expire and the landlord will have to serve a new notice if they intend to bring a claim for possession.
For more information, please contact Faye Didcote on 01435 897297 or Faye.Didcote@kdllaw.com.
This legal update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.
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