pre-action protocol for private landlords by landlord advice

Serving a Valid Section 21 Notice 

Following the Deregulation Act 2015 being enacted, the section 21 procedure has become more complex than it was prior to the enactment of this Act. This is because there are now more legal obligations to meet, known as the prescribed requirements, which if not complied with, will result in a restriction on serving a valid section 21 notice. This however applies to England only, there are different requirements for Wales which we have written about in a separate article.

Although these requirements have now been in force for over 4 years, many landlords remain uncertain as to how they can serve a valid section 21 notice. To provide some assistance, we set out a checklist below.

  1. Check the form and dates

You cannot serve a section 21 notice during the first 4 months of the initial tenancy agreement.

The notice must be on the up to date Form 6A if your tenancy started or was renewed on or after 1 October 2015.

Your section 21 notice must provide at least 2 months’ written notice.

Your tenant is entitled to notice equal to their rental period if they pay rent quarterly or every 6 months.

Also note that within 6 months of the section 21 notice being served, a possession claim should be issued otherwise the section 21 notice becomes invalid and a new notice would need to be served.

  1. Deposit Protection

You cannot serve a section 21 notice if either:

  • The tenancy deposit is not protected in a scheme
  • it was protected more than 30 days after your most recent contract started; or
  • you did not serve the prescribed information on the tenant and any person who paid the tenancy deposit on their behalf within 30 days of the tenancy deposit being paid.

If the tenancy deposit has not been dealt with in accordance with the requirements, the only option will be to return the tenancy deposit to the tenant or agree with the tenant for deposit to be used against any rent that may be outstanding. Once you no longer hold a tenancy deposit, the restriction on serving the section 21 notice because of a deposit issue is lifted.

Letting agents who hold a tenancy deposit on behalf of their clients must ensure to comply with the tenancy deposit legislation as these rules apply to letting agents also.

  1. Serve the correct documents

A section 21 notice can be invalid if you have failed to give your tenant a current copy of the following documents:

  • gas safety certificate
  • energy performance certificate
  • ‘How to rent: the checklist for renting in England’ – a government produced guide

If your property has a gas supply, a valid gas safety certificate should have been provided to the tenant before they took up occupation of the property and a valid gas safety certificate also must have been provided to the tenants and remain valid at the time a section 21 notice is served.

Though not a binding authority, in the case of Caridon Property Ltd v Monty Shooltz. Central London County Court. 2 February 2018 the learned Judge delivered judgement which stated a landlord is required to provide a valid gas safety certificate to their tenants before they took up occupation of the property.

This doesn’t apply if your tenancy started before 1 October 2015 and has not been renewed since.

  1. If you have overcharged for a fee or deposit 

From 1 June 2019 landlords and agents can only:

  • take up to 5 weeks’ rent as a deposit
  • charge fees in certain situations

Most tenancy related fees are banned which we have written about in a separate article and are known as prohibited payments.

You can’t give your tenant a valid section 21 notice if you took a higher deposit or took a prohibited payment after this date unless they return the overcharged amount first. 

But if a letting agent overcharged your tenant, the landlord can still give you a section 21 notice so long as the landlord has not taken a prohibited payment from the tenant.

  1. Find out if you need a licence

Many houses in multiple occupation (HMOs), such as bedsits and B&Bs, need a licence. Some councils require all private landlords to have a licence.

A landlord who needs a licence can’t serve a valid section 21 notice unless they:

  • are licensed; or
  • have applied for a licence or temporary exemption from licensing

Ask the council if you need a license.

  1. Disrepair

You can’t give your tenant a valid section 21 notice for the next 6 months if the council orders your landlord to do repairs under either:

  • improvement notice
  • emergency remedial action notice

A section 21 notice could be invalid if you served it after the tenant made a written complaint to you the landlord about conditions in your home. It becomes invalid if you complain to the council and they serve an improvement or emergency works notice on your landlord.

If the tenant has made a written complaint of disrepair at the property, you must have responded to it adequately within 14 days setting out the action you will take (e.g. details of when you have the necessary repairs carried out). If you fail to do this, the tenant may complain to the council who could serve the landlord with an improvement notice or remedial action notice, if this happens the section 21 notice which may have already been served becomes invalid.

If you have been served an improvement notice or emergency remedial action under sections 11, 12 or 40 of the Housing Act 2004 no section 21 notice can be served within 6 months of such notice having been served on you. If you have been served an improvement notice or emergency remedial action notice which has been suspended, the 6 months shall start from the date that the suspension ends.

  1. Equality Act 2010

The Equality Act 2010 prohibits discrimination against disabled persons. However, additionally it contains an additional type of discrimination which is specific to people with a disability, i.e. discrimination in consequence of a person’s disability. This arises if a landlord treats a tenant unfavourably because of something arising in consequence of the tenant’s disability and the landlord cannot show that the treatment is a “proportionate means of achieving a legitimate end”.

A tenant will be disabled they suffer from a recognised mental or physical illness which has a long-term effect, normally lasting for a year or more. If there are facts indicating that the eviction is because of something arising in consequence of a person’s disability it will then be for the landlord to prove that it was not. If he/she cannot do so, then the landlord would have to show that, nevertheless, eviction was proportionate. If this cannot be shown, although the section 21 notice itself may be valid, a court could refuse to make a possession order on grounds of discrimination.

Still need help?

If you think your notice is invalid or need to serve a notice or further advice, please contact our team on 020 3903 2000 or [email protected].

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