Changes to the law on Section 21 and in particular how landlords deal with reported repair issues is now of crucial importance if section 21 claims for possession are to be successful. Careful pre-planning is now essential at the time of setting-up Assured Shorthold Tenancies (AST).
The Section 21 eviction process for ASTs in England and Wales is a very valuable concession for landlords, which not all jurisdictions give: it allows for no-fault (no reason required) eviction of tenants.
Because a minority of landlords have abused this concession, evicting tenants when they have made genuine repair requests, so-called “retaliatory” or “revenge” evictions, the law has been changed, which means landlords and their agents now have a further hurdle to jump to use Section 21, if repairs have been reported – see below.
In addition, other new legislation means that landlords and agents must fulfil some specific requirements if their s21 eviction is to be successful. For any tenancy commencing on or after 1 October 2015:
- Tenants must be issued with a valid EPC
- Tenants must be issued with a current Gas Safety Certificate – if gas is present.
- Tenants must be provided with the version of the government’s “How to Rent Guide”, current at the time of the commencement of the tenancy.
- Service within 30 days* of the deposit being received, along with the scheme’s Statutory Notice and their information leaflet. The notice must refer to a clause in the tenancy agreement which explains the circumstance in which money can be deducted – usually damage, service charges and arrears of rent.
These documents must be provided at the time of the commencement of the tenancy, or in the case of the How to Rent Guide, at the very least, BEFORE a section 21 notice is served.
*Any deposit you take must be protected within 30 days (even one day late will mean you are subject to a fine and unable to use s21) and service of the above must be to anyone who provided the deposit direct to you – tenant, parent, guarantor etc)
It is important to be clear with your tenants how formal communications can be made. For example, sending documents (1 to 3) as attachments to emails is agreed. Service of notices should always be done in person or posted through the address letter box and independently witnessed. In each case the tenancy agreement should state how communications can be made. You ALWAYS need documentary evidence – proof – that documents have been sent or served on tenants.
Section 21 Notices
For any AST starting on or after 1 October 2016, a new form of Section 21 Notice is required (Form 6a) and will not be valid if served during the first four months of an AST, and the notice will expire if court proceedings are not started within 6 months of service.
Reported Repair Issues
The idea behind the new legislation (Deregulation Act) on “retaliatory eviction” is that where a tenant reports (in writing) a repair issue, the landlord must respond – provide an “adequate response”- within 14 days. The repair request triggers a series of actions:
- An adequate response and repair has no impact on the ability to serve a valid s21 notice.
- An adequate response but no repair resolution may result in the tenant reporting the matter to the local authority environmental health department – see 4.
- No adequate response could also result in the tenant reporting the matter to the local authority environmental health department – see 4.
- The local authority can either:
- a. Inspect and find the issue does not constitute a Category 1 or 2 repair issue – no impact on s21.
- b. The local authority has not yet decided on what to do.
- c. The local authority issues a “relevant notice”, usually an improvement notice or enforcement order.
In the case of b or c the landlord or agent will be prevented from issuing a valid section 21 notice for 6 months.
An adequate response would be one where the landlord or agent states (ideally in writing) the remedial action that will be taken and sets out a reasonable time scale. This should then be followed quickly by arrangements with tradesmen and the tenant giving reasonable notice periods for means of access.
This repairs process under the Deregulation Act includes common parts in HMOs where the landlord or agent under an AST controls the common parts in the building.
This puts pressure on landlords and agents to have proper repair procedures in place. Apart from the fact that repairing of defective items quickly often saves money in the long run, it prevents the situation were you are prevented from re-letting for 6 months. This is a particularly onerous issue for agents given the liability and reputational consequences not responding to tenants’ repair requests.
Dealing with Repair Requests
Dealing effectively with these matters can become taxing to say the least. It’s one thing for ministers to sit in Westminster dreaming up rules to prevent “innocent” tenants being thrown out on the streets; it’s quite another to deal with a tenant who is struggling to pay the rent, using repairs as a smokescreen to avoid payment, and being obstructive about allowing tradesmen in to do the supposedly required work. These are the hard realities from a landlord’s or agent’s perspective.
- You should make sure your properties are in good condition when you let, making sure you have evidence of this by taking a good inventory – use an independent inventory company if you can. It is also worth carrying out a health and safety risk assessment, including Legionella checks, between every tenancy.
- You should set a schedule to do regular inspections, after 3 months and then every 6 or 12 months depending on how long the tenant stays.
- Make sure you tenants have your contact details. Although requests must be in writing, the legislation says this is not necessary if they don’t have your contact details.
- Issue your tenants with repair request forms which set out clearly but concisely what the issues are and make sure they are aware they need to put requests in writing. There could be issues here if your tenants have poor English, so exceptions may have to be made.
- Try to develop a team of loyal tradespeople so that they will respond quickly to requests for work.
- Keep a Journal which records every communication, every promise and every action you take regarding your tenants and tenancies – generate an audit trail for every repair request from start to final inspection and tenant sign off.
What are the landlord’s or agents defences or limitations?
Anticipating that there could be vexatious complaints from some tenants the legislation provides for situations which will NOT make the s21 notice invalid:
- Where it can be shown that the tenant failed to use the property in a “tenant like manner”
- Where the disrepair is as a result of the tenant breaching the tenancy agreement’s obligations
- Where a mortgagee (lender) is seeking recovery of a property under a mortgage that was in place before the tenancy commenced
- When a s21 notice is served the property is genuinely on the market for sale.
When tenants get into arrears, it is not uncommon for a “rent arrears letter” requesting payment to result in a list of requested repairs – a delaying tactic for payment. In this situation you should always serve a s21 notice with the arrears letter (get proof of service), providing it is outside the first 4 months of the tenancy, therefore pre-empting any vexatious written repairs requests.
Contentious Issues with this Legislation
The landlord / agent is totally in the hands of the local authority, both as to the time they take to make a decision, or issue a relevant notice, or decide on the degree of disrepair, category 1 and 2 issues.
Some repair issue are contentious, particularly in the case of condensation and mould, and unless the housing officers are experienced in these matters, a situation caused by the tenants’ lifestyles can be blamed on the landlord.
The worst case scenario is where all this becomes a legal dispute in court, where expert reports are required, all of which becomes very expensive. It is therefore important to stay on top of repairs, and inspect regularly so that tenants know they being attended to, and if the repairs situation arises, deal with it effectively.
All of the forms and checklists referred to above can be found here: www.landlordzone.co.uk/documents