In recent years, we have seen many regulations over residential lettings, in particular Assured Shorthold Tenancies (ASTs). Many of these restrict a landlord’s ability to serve and rely on a Section 21 notice to seek possession of its property on non-fault grounds. So what are the restrictions on serving Section 21 Notices and why do they exist?
The purpose of this week’s Legal Update is to serve as an aide-memoire of those restrictions. With this, we want to ensure that landlords and their agents can rely on a Section 21 notice, and avoid difficulties down the line. Where tenants do not comply with restrictions, the landlord can serve a Section 21 notice.
This article contains a list of the restrictions which inhibit a landlord’s ability to serve a Section 21 notice.
HMOs (House in Multiple Occupation)
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.
The landlord must have complied with the tenancy deposit rules in order to rely on a Section 21 notice.
Generally, this requires the landlord to protect the deposit in a government-approved scheme. The tenant must receive the prescribed information in connection with the deposit (including any leaflets provided by the scheme). This applies to anyone who paid the deposit on the tenant’s behalf. It must happen within 30 days. However, 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. If the landlord does not protect the deposit (in time or at all), they cannot serve Section 21 Notice. This is unless and until they return the deposit 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.
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. Also, the tenant must receive an updated Gas Safety Certificate following each annual gas safety inspection. They must also receive an Energy Performance Certificate for the property. Otherwise, the landlord cannot 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).
How to Rent Guide
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. However, the landlord must provide a further copy to the tenant on renewal if a new copy exists.
You can find the current version (from 31 May 2019) via the following link:- https://www.gov.uk/government/publications/how-to-rent/how-to-rent-the-checklist-for-renting-in-england
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).
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. This is 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, landlords must comply in order to avoid any later (costly) disputes until the issue is resolved.
The new form of Section 21 notice (Form 6A) to be used from 01 June 2019 can be found via this link.
A landlord cannot serve a Section 21 notice within the first 4 months of the AST. If a landlord does not commence proceedings for possession within 6 months from the date they served the notice, the Section 21 notice will expire. In this case, the landlord will have to serve a new notice if they intend
to bring a claim for possession.