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Section 21 Notices seeking possession of rented residential property (Post-1 October 2015)

What is a Section 21 Notice?

A Section 21 (“s21”) Notice is a formal legal notice that a landlord can serve on their tenant as a method of ending an assured shorthold tenancy.  It is a notice giving the tenant a period of two months from service of the notice to vacate the property.

Requirements for serving a Section 21 Notice

Not only must the s21 Notice be compliant with Section 21 of the Housing Act 1988 (the details of which can be found here: https://www.legislation.gov.uk/ukpga/1988/50/section/21) but there are numerous other requirements that must be met in order to serve a valid s21 Notice.

It is these requirements that can cause difficulties for landlords, because if they are not met the validity of the s21 notice is open to challenge by the tenant.

One of the most significant developments surrounding the requirements for service of a valid s21 Notice was the Deregulation Act 2015 (“DA 2015”). The DA 2015 introduced regulation which effects the s21 Notice process, the principal points of which to note include the following:

  • For any assured shorthold tenancies commencing after 1st October 2015, the prescribed form of s21 Notice must be used. Crucially, a s21 notice for post-DA 2015 tenancies has a 6 month shelf life, meaning that possession proceedings cannot be issued after 6 months have passed from the date the s21 notice was given.
  • A s21 Notice may not be given if the landlord is in breach of certain “prescribed requirements” under the DA 2015 and these include:
  • service of an Energy Performance Certificate (EPC) on the tenant at the start of the tenancy;
  • service of a Gas Safety Certificate (GSC), if there is gas at the property, at the start of the tenancy; and
  • service of the current ‘How to Rent: the checklist for renting in England’ booklet on the tenant at the start of the tenancy. The most recent version must be provided to the tenant. A copy of the most recent How to Rent booklet is available from the Government website here: https://www.gov.uk/government/publications/how-to-rent.

The EPC, GSC (if applicable) and How to Rent booklet should be served on the tenant at the commencement of the tenancy. If these are not provided on commencement of the tenancy, the validity of any s21 notice served may be open to challenge by the tenant.  

For further information on the EPC requirements please refer to our blog on EPCs and Assured Shorthold Tenancies [insert link to other blog article].

Deposit protection

If there is a deposit, it must be protected with a recognised Tenancy Deposit Scheme within 30 days of receipt of the deposit and the Prescribed Information relating to the deposit must be provided to the tenant within that same 30 day period. If these requirements are not met, any s21 Notice served will not be valid.

Please refer to our blog on Deposits, Deposit Protection and the Prescribed Information [insert link to other blog article] for further information on deposit requirements.

Licensing

If the rented property is subject to selective licensing or is a House of Multiple Occupation (HMO) and is required to be licensed with the relevant local authority, and has not been licensed, any s21 notice served will be rendered invalid and a s21 notice should not be served until the property is properly licensed.

Please refer to our blog on Selective Licensing of Private Landlords by Local Authorities [insert link to other blog article] for further information in this regard.

Clauses within the assured shorthold tenancy agreement

There may be clauses within the assured shorthold tenancy agreement which could affect the validity of a s21 notice. These are not limited to but may include:

  • A relevant break clause (a clause bringing the fixed term of the tenancy to an end early);
  • A clause relating to the service and/or method of service of notices on the tenant;
  • A clause relating to the date that notice may be served.

Improvement Notices and Notices served under section 40(7) of the Housing Act 2004

In accordance with Section 33 of the DA 2015, a s21 notice may not be given if a “relevant notice” has been served in respect of the property within the last 6 months before the date of the s21 notice. A “relevant notice” is an improvement notice under sections 11 or 12 of the Housing Act 2004 and/or a notice requiring emergency remedial action under section 40(7) of the Housing Act 2004. These are issued by the local authority to the property.

Additionally we would recommend that advice should be sought prior to service of a s21 notice or regarding the validity of a s21 notice served in the following circumstances as specified by section 33 of the DA 2015:

  • The tenant has complained in writing about the condition of the property;
  • The tenant has complained to the local housing authority about the condition of the property.

Given the extent of what is required before a s21 notice can be served, preparing a s21 notice can be difficult and require consideration of multiple issues. There is a lot at stake for the landlord if something goes wrong with serving a s21 notice or if one of the DA 2015 requirements are missed.

Our team can advise on the validity of s21 Notices and drafting and serving s21 Notices on tenants. Please contact our team for advice on s21 Notices and the DA 2015.


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