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When landlords cannot use section 21 notices
Posted on 02/09/21 in Housing Matters
John Gallagher, Principal Solicitor at Shelter, sets out the conditions that landlords must comply with before serving a valid section 21 notice.
A landlord cannot use a 'no fault' section 21 notice if:
- the landlord has not given the tenant valid gas safety and energy performance certificates
- the landlord has not given the tenant the current copy of the GOV.UK How to Rent booklet
- the property is required to be licensed by the Housing Act 2004 but is not licensed
- the landlord is in breach of the provisions relating to the protection of tenancy deposits
- the landlord has taken payments prohibited by the Tenant Fees Act 2019 and not repaid them
- the notice is given in retaliation for a complaint about the condition of the property
The claim must fail if the notice is invalid
A section 21 notice is the first step for a landlord to recover possession of an assured shorthold tenancy without giving a reason or ground for possession. A valid notice must be served before a landlord can issue a claim for possession in the courts.
There are restrictions on when a landlord can use section 21 of the Housing Act 1988. These are additional to the rules governing the form and period of a valid notice
If a section 21 notice is invalid because the landlord did not comply with certain legal requirements, the landlord must first comply with all legal requirements and then give the tenant a new section 21 notice in order to resume the possession claim.
Gas safety certificate and EPC
For tenancies that started on or after 1 October 2015, a landlord cannot serve a valid section 21 notice if they have not complied with two prescribed requirements relating to gas safety and energy performance in the tenant's property.
The landlord must give the tenant a copy of the current gas safety certificate and a valid energy performance certificate (EPC) before giving notice. The tenant has a defence to court proceedings if the landlord has failed to provide both certificates by the time the notice is given.
Gas safety requirements
Under The Gas Safety (Installation and Use) Regulations 1998, landlords must carry out a gas safety inspection every 12 months. A copy of the last gas safety certificate must be given to any new tenant before they move in to the property.
A section 21 notice can still be valid if the certificate is not given to the tenant before the start of the tenancy. The Court of Appeal held in Trecarrell House Ltd v Rouncefield that landlords can give the certificate to tenants at any time before, or at the same time as the section 21 notice.
Under The Energy Performance of Buildings (England and Wales) Regulations 2012, landlords must give a copy of a valid energy performance certificate (EPC) to the tenant before the section 21 notice is served. No time limit is specified for this purpose.
The EPC can be given to the tenant at any point before the section 21 notice is served.
How to rent booklet
Private landlords of assured shorthold tenancies that started on or after 1 October 2015 cannot serve a valid section 21 notice until they have given to their tenants copy of the Government guide How to rent: the checklist for renting in England.
The guide can be provided as a hard copy, or emailed if the tenant has agreed to accept electronic documents.
The copy given to tenants must be the current version at the time of the start of the tenancy. There is no requirement to supply a new copy each time the guide is updated.
Where the tenancy is renewed with the same tenants, the booklet does not need to be provided again unless it has been updated in the meantime, in which case the new version must be given.
Current and past versions of the booklet can be found on the Nearly Legal website
Property licensing requirements
A section 21 notice is invalid if the landlord serves it while:
- the property is required to be licensed by the local authority
- no licence is in place
- the landlord has not applied for a licence
In England, a property is subject to mandatory licensing if it is a house in multiple occupation (HMO) occupied by five or more people living in two or more separate households. Other privately rented properties can be subject to licensing if the local authority has adopted a selective licensing scheme for that part of the borough.
Tenancy deposit protection rules
A landlord or agent who receives a tenancy deposit must protect it in a government approved tenancy deposit scheme within 30 days of receiving it.
The landlord or agent must both:
- comply with the initial requirements of an authorised scheme
- give a specific set of information relating to the scheme to the tenant and whoever paid the deposit for the tenant
A landlord cannot give a valid section 21 notice if either:
- the deposit was not protected within 30 days of receipt
- the deposit is not held in accordance with an authorised scheme
- the prescribed information has not been provided to the tenant and any other relevant person
A relevant person is anyone who has paid the deposit on the tenant's behalf.
A tenancy deposit is any money held as security for the performance of the tenant's obligations under the tenancy. This includes unpaid rent and damage to the property.
There are different sanctions for failing to protect the deposit and failing to provide the full set of prescribed information.
The landlord has not protected the deposit in time
The landlord must return the money before they can serve a section 21 notice if they have either:
- failed to protect the tenant's deposit within 30 days of receiving it
- allowed the tenancy deposit protection to lapse
The landlord cannot avoid this by protecting the deposit after 30 days.
Where a tenancy is renewed, the landlord must always ensure that the deposit remains protected with an authorised scheme.
The landlord has not given all the prescribed information
Where the landlord has protected the deposit within 30 days of receiving it but has failed to give the tenant the prescribed information, they must provide the correct information before serving a section 21 notice.
The full list of prescribed information must be provided. Sending a copy of the deposit protection certificate received by the scheme is not enough to comply with the requirement.
Late compliance is possible where the only failure of the landlord is not to give the full prescribed information. Once all the prescribed information has been given to the tenant and any relevant person, a section 21 notice can be served.
The landlord returns the deposit
The landlord can lift the prohibition on serving a section 21 notice by returning the deposit to the tenant before the notice is served.
Under the Tenant Fees Act 2019, it is unlawful for private landlords to charge the tenant or other relevant person any fees other than permitted payments.
A landlord cannot serve a valid section 21 notice to end an assured shorthold tenancy until any prohibited payment or unlawfully retained holding deposit has been repaid.
Prohibited fees include charges for:
- preparing a tenancy agreement
- inventories or referencing
- administration charges
The permitted payments include:
- a refundable tenancy deposit
- payments for utilities and council tax
- limited payments for the tenant losing their key
- limited interest on rent which is more than 14 days late
A payment of damages for breach of a tenancy agreement is a permitted payment.
The Deregulation Act 2015 introduced measures to protect assured shorthold tenants from retaliatory eviction after they have complained to the landlord about housing conditions. The Act prevents a private landlord from obtaining possession in two situations.
First, the landlord cannot serve a section 21 notice within a period of six months from the date of any improvement notice or a notice of emergency remedial action served by the local authority.
The second situation is more complex and rarely happens. A section 21 notice given to an assured shorthold tenant is invalid when all of the following conditions apply:
- before the section 21 notice was given, the tenant made a complaint in writing to the landlord about the condition of the rented property
- the landlord did not respond at all to the tenant's complaint within 14 days; or the landlord's response failed to address the tenant's complaint; or the response consisted of giving the tenant a section 21 notice
- the tenant then made a complaint to the local authority about the condition of the property (usually to the environmental health department)
- the landlord gave a section 21 notice (if not already given in response to the initial complaint)
- the local authority served an improvement notice or a notice of emergency remedial action on the landlord in response to the complaint
Whether a section 21 notice can be successfully challenged depends on the willingness of local authority environmental health departments to respond promptly to tenant's complaints, and to serve the relevant notice on the landlord.
The tenant must stress to the local authority the importance of serving an improvement notice as a matter of urgency.
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