Section 21 Notices:

Tessa Shepperson of Landlord Law has set out here very clearly the new rules affecting the Section 21 process and the key points you should be aware of when serving s21 notices. It’s very important that landlords to follow these rules to the letter as minor errors will almost certainly result in the failure of a court eviction application.

The new rules have also thrown up a few anomalies which have yet to be ironed out by the courts – see below.

These guidelines apply primarily to England. Other regions and jurisdictions are similar but there may be important differences and this is becoming more so in the UK with the devolution of laws. This is not a definitive interpretation of the law, every case is different and only a court can decide. If in doubt seek expert advice.

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Tessa says:

“As you will know, section 21 notices are the notices you need to serve on an assured shorthold tenant if you want to evict them under the ‘no fault’ shorthold ground

You should also know that new rules came into effect on 1 October 2015 for all tenancies which were created or renewed on or after that date.

These new rules will, from 1 October 2018, apply to ALL assured shorthold tenancies.

This is not far off now, so you need to be sure that all your tenancies will be compliant.

The new rules are summarised as follows:

As well as the existing preconditions of complying with the deposit rules and having, where required, an HMO license, landlords must, at the start of the tenancy serve:

  • A current gas safety inspection certificate
  • A current Energy Performance Certificate
  • A copy of the governments How to Rent booklet

A section 21 notice cannot be served within 6 months of service of a Local Authority Improvement Notice (unless this is withdrawn or similar).

You need to use the new prescribed section 21 form – which is also known now as form 6a

This notice cannot be served during the original first four months of the tenancy and it will expire (in most cases) after six months.

Things you need to watch out for:

One major problem for landlords under this new regime will be if your tenant refuses to allow you to carry out a new ECP assessment when it becomes due (every 10 years) or an annual gas safety inspection. Because these documents must be current at the time of serving an s21 notice after 1 October 2018, this situation would be fatal to all ASTs where a landlord wants to use section 21.

Unless you have already served a section 21 notice (the old notices have an indefinite life) it is probably already too late to evict your tenant under the old rules (unless you serve the notice really quickly). So now you will have to do whatever you can to persuade your tenant to let your contractor in to do the EPC and/or the gas inspection.

Another possible issue for landlords is that some Judges are refusing to accept as valid section 21 notices where no gas certificate was served at the start of the tenancy.

Here is a quote from the Nearly Legal blog post on the recent County Court case of Assured Property Service Ltd v Ooo, 2017 on this:

The District Judge held that provision of a gas safety certificate to the tenant prior to occupation was required by s.36(6) of the Gas Safety (Installation and Use) Regulations 1998. Provision of that certificate was a requirement of s.2(1)(b) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, failing which, no valid s.21 notice could be served by reason of s.21A Housing Act 1988 (as amended).

So you should ALWAYS serve your gas safety certificate, along with the other documents listed above, on the tenant BEFORE they move in. Ideally at the time they sign the tenancy agreement.

The landlords in this case lost their case. This case is only County Court case of course, but I understand that a similar case may be going to the Court of Appeal. So watch this space.”

As with all new legislation it needs to be tested in the courts to establish the new rules in different circumstances, so the issue of when the notices must be served and what happens if the tenant refuses access have still to be defined by higher courts.

Free Notices are available here: https://www.landlordzone.co.uk/documents

Author: Tessa Shepperson – www.landlordlaw.co.uk

©LandlordZONE® – legal content applies primarily to England and is not a definitive statement of the law, always seek professional advice.

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