Section 21 Notices
Serving a valid Section 21 Notice has become a far more complex procedure following the enactment of the Deregulation Act 2015. A landlord must now follow the ‘prescribed requirements’ in order to meet the required legal obligations involved in serving a valid Section 21 Notice.
This article will set out each stage a landlord must comply with to serve a valid Section 21 Notice and aims to provide a by-step guide regarding what landlords must and must not do.
1. Check that the Section 21 form and dates are correct:
In preparing your Section 21 eviction notice, make sure that the following timings have been observed:
- Landlords cannot serve a Section 21 Notice during the first 4 months of an original tenancy agreement.
- The Section 21 Notice must provide at least 2 months’ written notice.
- The notice must be equal to the tenants’ rental period. For example, if the rental period is every 6 months, then the tenants must be given 6 months’ notice.
- If the tenancy was started on, or renewed on or after 1 October 2015, the notice must be on the up-to-date Form 6A.
- A possession claim must be issued within six months of serving the Section 21 Notice. If not, the notice will become invalid, necessitating the need for a new notice to be served.
2. Is the tenancy deposit protected?
A landlord may not serve a valid Section 21 Eviction Notice if:
- The deposit is not protected in a scheme.
- If it was protected late – for most renters, late protection would mean more than 30 days after the most recent contract started, then a landlord will not be able to serve a valid Section 21 Notice unless the tenants’ deposit money is returned first.
- If the landlord did not serve the tenants with the Prescribed Information which should include written information about the deposit protection scheme, where the deposit is held.
If the tenancy deposit has not been protected, the options available to a Landlord are to return the deposit to the tenant or agree with the tenant to apply it against any outstanding rent. However, this raises potential problems for the Landlord at a later stage if there is damage or disrepair to the property which the Landlord would have used the deposit to repair the damage. Once the deposit is no longer held, the Landlord should be able to serve a valid Section 21 Notice, subject to all the other requirements having been met.
Letting agents holding a tenancy deposit on behalf of their clients must comply with tenancy deposit legislation, as these rules also apply to them.
3. Have the correct documents been served?
A Section 21 Notice will be invalid if a landlord fails to give their tenants a current copy of the following documents:
- Gas safety certificate.
- Energy performance certificate (EPC).
- The government’s ‘how to rent’ guide.
A landlord should provide all of these documents before the tenants take up occupation of a property. A valid gas safety certificate must also remain valid at the time a Section 21 Notice is served. This only applies if where the tenancy started or was renewed on or after 1 October 2015.
Note: it is important that there is proof that these documents have been served, and the general advice here is to attach all these to the original tenancy agreement and have them signed for at the start of every tenancy.
4. Have the tenants been charged too much deposit or been charged a banned fee?
If a tenancy started on or after June 1 2019, landlords and agents can only charge fees in certain situations. This includes tenancy renewals on or after this date, and if the tenancy started before this date, the ban only applies to fees charged for 1 June 2020.
Landlords and agents can only:
- Take up to 5 weeks rent as deposit.
- Charge fees in certain situations.
If a tenant has been overcharged, the landlord must pay back any overcharged fees or deposit before they can serve a valid Section 21 Notice.
If an agent has overcharged a tenant, a landlord can still serve a valid Section 21 Notice so long as the landlord has not taken a prohibited payment from the tenant.
5. Do landlords need a licence?
Many houses in multiple occupation (HMOs), such as bedsits and B&Bs, need a licence. In some areas, all private landlords must have a licence.
A landlord who needs a licence cannot serve a valid Section 21 Notice unless they have or have applied for:
- A licence from the council; or
- A temporary exemption.
If a tenant is unsure as to whether their landlord needs a licence, they should ask the council.
6. Disrepair
Some landlords try to evict tenants who ask for repairs. The press have called this revenge eviction.
A Section 21 Notice cannot be served for the next 6 months if a tenant has complained to their council about repairs and the landlord was served with:
- An improvement notice; and/or
- An emergency works notice.
A Section 21 Notice could be invalid if a landlord served the notice after the tenant made a written complaint to the local authority regarding the conditions of their home and if an Improvement Notice or Emergency Works Notice has been served upon the landlord.
If a tenant receives an Improvement Notice or emergency remedial action under sections 11, 12, or 40 of the Housing Act 2004, a Section 21 Notice cannot be served within six months of receiving such a notice. If the improvement Notice or emergency remedial action notice has been suspended, the six-month period will begin from the date the suspension ends.
If the notice is valid, the tenancy continues until either:
- The tenant leaves the property voluntarily; or
- The tenant is evicted through the legal process.
Please be aware that these guidelines are primarily for England. As well as taking other regions and jurisdictions into account, there is also the factor of case-by-case specifics. Every case is different and only a court can decide. We recommend speaking to our expert advisors in our Property Litigation and Dispute Resolution team to find out more and to discuss your case. Contact us today.
It is important to note that given the results of the General Election of 4 July 2024, the content within this article is subject to change over the coming months, and an updated article will be published once we are made aware of what the changes will be.
Contact our property team today to discuss any of the above in more detail by submitting the form below.
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