Section 21 Possession claims are failing due to minor but little known hurdles which means numerous claims are thrown out of court, that’s according to St. Albans Chambers barrister, Michael Grant.
The Section 21 possession claims process is a highly advantageous system as a no-fault, no-blame eviction which soon only those UK landlords in England and Wales will enjoy – Scotland is going for a breach of contract route, with the onus of proof on the landlord.
Due to some technicalities, S.21 has always had a high failure rate. Some judges recon 50% as the norm, but now with more hurdles for landlords to negotiate, a court fee of £350 and another 2-month notice period to wait if the action fails, it’s more important than ever to get it right first time
As Michael Grant says: “It is therefore unsurprising that S.21 has remained the more popular choice for landlords, as opposed to the S.8 possession route which not only requires the landlord to prove the grounds for possession brought against the tenant but often also to show that it is reasonable for the Court to make such an order for possession.”
So, whilst at first sight S.21 is the landlord’s ideal answer to a delinquent tenant, one were all appeals to reason have failed, where rent arrears are going through the roof, the Housing Act 2004 (and more recently the Deregulation Act 2015) have introduced a whole new raft of restrictions, “hurdles” which must be jumped, if a S.21 claim is to be successful.
Michael Grant identifies 14 key scenarios, points which mean a possession claim may fail:
1) Where a S.21 notice was served on the tenant and the AST is not in fact an AST, but rather an assured tenancy (S.21 is only reserved for ASTs);
2) Where proceedings are issued prior to the expiry of a S.21 notice;
3) Where the property is required by the Housing Act 2004 to be licensed as a House in Multiple Occupation (HMO) and is not so licensed;
4) Where the landlord has failed to protect the deposit in an authorised deposit scheme within 30 days of receiving the funds;
5) Where the landlord has failed to provide the tenant with prescribed information within 30 days of receiving the deposit;
6) In the event that someone paid the deposit on behalf of the tenant (otherwise known as a relevant person) and the landlord has failed to provide that relevant person with prescribed information within 30 days of receiving the deposit [NB – The duty to provide the relevant person with such information exists regardless of whether the landlord has in fact provided the tenant with such information];
The following are only in relation to tenancies that have commenced on or after 1 October 2015:
7) Where the S.21 notice is served on the tenant within the period of 4 months beginning with the day on which the tenancy began;
8) Where an improvement notice was served by the Council in relation to a category 1 or category 2 hazard, and a S.21 notice was served on the tenant within the period of 6 months beginning with the day on which the improvement notice was served;
9) Where a notice was served by the Council following emergency remedial action, and a S.21 notice was served on the tenant within the period of 6 months beginning with the day on which the improvement notice was served;
10) Where the landlord takes revenge on the tenant for complaining about the condition of the property (or the common parts of the building), and such a complaint is made to the landlord or to a person acting on behalf of the landlord in relation to the tenancy, and the landlord attempts to carry out a retaliatory eviction. Provided the case does not fall under any of the allowed exemptions, the S.21 notice will be deemed invalid should the following steps have taken place:
i) Before the S.21 notice was given, the tenant made a complaint to the landlord in writing about the condition of the property; and
ii) The landlord failed to provide a response within 14 days with a description of the action that he proposes to take to address the complaint and/or he failed to set out a reasonable timescale within which that action will be taken; and
iii) The tenant made a complaint to the local authority’s environmental health service about the same, or substantially the same, defects complained about to the landlord; and
iv) The local authority has served a relevant notice in relation to the property in response to the complaint made by the tenant.
11) Where no Energy Performance Certificate has been given to the tenant either prior to the tenancy commencing or at the least prior to the giving of a section 21 notice;
12) Where no Gas Safety Certificate has been given to the tenant either prior to the tenancy commencing or within 28 days of the commencement of the tenancy, or at the very least prior to the giving of the S.21 Notice;
13) Where the landlord, or someone acting on his behalf, has failed to give the tenant the current version of the document entitled “How to rent: the checklist for renting in England”, as published by the Department for Communities and Local Government.
14) Where the new prescribed form of S.21 notice has not been served on the tenant.
Mr Grant claims that over the past year there has been a surge in failed S.21 possession claims. Many such claims, he says, are issued under the quick accelerated possession route (a paper system designed to avoid the need for a hearing). “Judges have become quick to highlight any errors in procedure so as to hold a S.21 notice invalid, which inevitably means the end of the road for any S.21 possession claim.”
Whether you are a solicitor, landlord, letting agent or other property professional, says Mr Grant, it is strongly advised that you check the above list before serving a S.21 notice. “Should any mistakes have been made so as to deem any S.21 notice invalid, a new valid S.21 notice would need to be served on the tenant, which will delay possession by at least another 2-3 months (possibly longer depending on Court Bailiff availability). In the majority of possession cases this will often mean there will be months’ worth of rent arrears by the time vacant possession is given.”
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