What would invalidate a Section 21 notice for possession?

If you are a landlord seeking to regain possession of your residential property, you may be familiar with the Section 21 notice as a valuable tool in this process. The S21 notice, also known as a Section 21 notice pursuant to the Housing Act 1988, allows landlords to regain possession without needing to prove fault on the tenant’s part. Prior to the implementation of the Deregulation Act 2015, it used to be relatively straightforward for landlords to obtain possession. However, there are now stricter criteria that must be met to enable a landlord to regain possession. An invalid S21 notice can set the possession process back significantly, making it crucial for landlords to understand the legal requirements associated with it.

Common mistakes when drafting a S21 notice

  1. Correct format
    The notice must be given in the correct format, and landlords must use Form 6a when serving the notice. Form 6a is a statutory form that provides tenants with information about the possession process. It’s worth noting that tenants cannot be served with an S21 notice within the first four months of a new residential tenancy. Failure to use Form 6a can result in the S21 notice being invalid.
  2. Correct notice period
    The tenant must be given the correct amount of notice before they must vacate the property. This notice period is not always two months; it depends on the rental agreement and the frequency of rent payments. In some cases, a notice period of up to six months must be provided. A notice period that is too short can invalidate the notice.
  3. Accuracy of information
    Providing accurate information on the S21 notice is crucial. Typographical errors, for example, with a property address could render the notice invalid. It’s best practice to cross-check the rental property address at the land registry or via a postal checker, rather than relying solely on the tenancy agreement.
  4. Lack of proper service
    This includes failing to serve the notice to all relevant tenants and failing to serve it in accordance with the terms specified in the tenancy agreement.  Failure to do so can lead to disputes and legal challenges, potentially rendering the S21 notice invalid.
  5. Timing issues
    The timing of the notice is crucial. If the notice is served to expire before the fixed term of the tenancy ends or is served within the first four months of a new tenancy, it is generally considered invalid.
  6. Six-month validity
    A key aspect of a valid S21 notice is its time-limited validity. The notice remains valid for six months, which means that landlords must initiate legal proceedings within this window if they require a court order to obtain possession.

    Understanding the time limits associated with S21 notices is essential. Landlords must plan their actions accordingly within this six-month period, whether it involves negotiating with tenants, pursuing legal proceedings, or serving a new notice if necessary.

The document requirements for a valid S21 notice

  1. Expired gas safety certificate
    Valid Gas Safety Certificates must be provided to the tenant throughout the tenancy before the S21 notice is served. If the certificate has expired at the time of service, the notice may be invalidated.

    If the gas safety paperwork is not in order, it could prevent a landlord from gaining possession using the s21 route for the duration of the tenancy. 
  2. Failure to protect the deposit
    Failing to protect the tenant’s deposit within 30 days of receipt or provide the prescribed information can render the S21 notice invalid. Dependant on the breach, a notice cannot be served until either the deposit is returned or the prescribed information is served.

    This is one of the most common mistakes a landlord or agent can make which can also lead to the tenant being entitled to recover between one and three times the deposit amount for each tenancy agreement that is entered into between the landlord and tenant.
  3. Unlawful eviction
    It is a common misconception that a landlord can recover the property when the s21 notice expires by changing the locks.  It is a criminal offence, pursuant to s1 Protection from Eviction Act 1977 to evict a tenant without their consent or a Court Order.  Further, if the tent is illegally evicted, they could make an application to the Tribunal to seek a rent repayment order pursuant to s40(3) of the Housing and Planning Act 2016 for reimbursement of up to 12 months rent. A landlord does not need to be convicted for a Tribunal to find (beyond reasonable doubt that the offence has been committed.
  4. Local authority notices
    If the local authority has served an improvement notice or emergency remedial notice related to the property’s condition, it can affect the validity of an S21 notice.

    Landlords should promptly address any improvement or remedial notices from the local authority to maintain the property’s compliance with legal standards. Failure to do so can not only result in the invalidation of the S21 notice but also potential penalties and legal action from the local authority.
  5. EPC requirement
    An Energy Performance Certificate (EPC) must be provided to the tenant before serving the S21 notice. Failing to do so can invalidate the notice.
  6. Bankruptcy or company insolvency
    If the landlord is declared bankrupt or the property is owned by a company that goes insolvent, it can affect the validity of the S21 notice. This situation might require the appointment of a receiver.

    In cases of landlord bankruptcy or company insolvency, legal proceedings can become more complex. Landlords should seek legal advice and ensure that all necessary arrangements are made to address property ownership and management during such situations to avoid issues with the S21 notice’s validity.
  7. Changes in legislation
    Changes in legislation can impact the validity of S21 notices. Landlords should stay up to date with legal requirements and regulations to ensure compliance.
  8. Non-registration of HMO
    If the property falls under the local council’s definition of a House in Multiple Occupation (HMO), a license must be obtained. The license holder must comply with the terms of the license to avoid criminal or civil sanctions. Any S21 notice will be invalid if a landlord fails to obtain an HMO license or breaches a current HMO license.
  9. Additional licensing requirements
    Many councils across the United Kingdom require landlords to hold a license before they can rent their property to residential tenants. This license is different from an HMO license. Failure to obtain a license could result in criminal and civil sanctions. If an appropriate license is not in place, the landlord could be liable to repay the tenant’s rent under a Rent Repayment Order.
  10. Service of prescribed documents
    The Deregulation Act 2015, states that a landlord should ensure that a “How to Rent Guide,” Energy Performance Certificate, and Gas Safety Certificate (if there is a gas supply at the property) must be served on a tenant before serving the S21 notice. Failure to serve these documents could make the S21 notice invalid.
  11. Retaliatory eviction
    A S21 notice cannot be served if the tenant has reported disrepair, and the landlord has not repaired the issue. This provision protects tenants from retaliatory eviction when they raise legitimate concerns about the property’s condition.

The future of S21 notices

It’s important to note that the Renters Reform Bill proposes to abolish S21 notices in their current form. This proposed change would significantly impact how landlords can regain possession of their properties. For more information on the Renters Reform Bill and its potential implications, please visit our article: What is the Renters Reform Bill?

The Renters Reform Bill represents a potential shift in the landscape of property management and tenancy agreements. Landlords should closely monitor developments related to this bill and be prepared to adapt their procedures and practices to align with any legislative changes that may arise.

In conclusion, the S21 notice remains an essential tool for landlords seeking to regain possession of their rental properties, but it can only be used if the landlord complies with the relevant statutory requirements. Understanding and adhering to these requirements is crucial to ensure the validity of the S21 notice and to avoid potential legal disputes or delays in the possession process. If in doubt, landlords should seek legal advice to ensure they are following the correct procedures.

How our team can help you

Our dedicated possessions team has extensive knowledge of landlord and tenant legislation and are here to handle the intricate legal process on your behalf to ensure that a valid s21 notice is served.  

Whether you are facing a dispute over licencing, deposit protection, disrepair or legal compliance, our property dispute lawyers can provide you with practical solutions, tailored to your circumstances to help you achieve your property objectives.