New Rules - The Section 21 & Retaliatory Eviction

Right then! Before you read any further grab yourself a coffee and/or a Red Bull and/or a Pro Plus, and then pinch yourself at regular intervals over the next few minutes because this new legislation is about as far as you can get from 'edge of your seat' stuff, but it is necessary. So here goes...

...As of October 1st, the Government introduced a load of new legislation relating to Landlord's legal responsibilities of which one of those is changes relating to service of Section 21's. You still awake? Good, so I'll continue. 

What even is a Section 21?

In a very small nutshell, a Section 21 is a Notice of Possession that operates under section 21 of the Housing Act 1988. It is the legal eviction notice a landlord can give to a tenant to regain possession of a property at the end of a tenancy. "What, all tenancies?" I hear you ask. 

Which tenancies will be affected?

In answer to your very valid question, new assured shorthold tenancies (AST) in England which started from the 1st October 2015 will need to use the new standardised Section 21 form and adhere to all the requirements for valid service. This includes when tenants wish to renew their tenancy but does not include statutory periodic tenancies. Now have a really big sip of Red Bull.

When should a Section 21 be served?

Prior to the 1st October 2015 a Section 21(4)a notice could be served when the tenants signed the tenancy agreement, whereas now the new standardised Section 21 cannot be served within the first 4 months of the initial tenancy, BUT it may be served at the outset of a tenancy renewal. 

What notice period will I need to give?

You'll need to concentrate here as the last thing you want is to have given yourself a pat on the back for serving the Section 21 correctly only to let yourself down by misunderstanding the notice periods. So, a two month notice period will be all that is needed in most circumstances as this captures weekly through monthly tenancy periods. Although, where a tenancy period runs quarterly or biannually, landlords will still need to give an appropriate matching period of notice. For example, 3 months' notice for quarterly tenancy periods, and 6 months' notice for biannual and above. 

How long will a Section 21 last?

In most circumstances Section 21s will now last 6 months from the date of service. Although for contractual periodic tenancies requiring more than two months' notice, possession proceedings will need to be started within 4 months of expiry of the notice. You guys still with me? Coffee, more coffee!

What is needed to serve a valid Section 21 notice?

Now, if you do not want to invalidate all the good work you've done up to this point the next bit is really rather important. For tenancies after October 1st 2015 a valid Section 21 can only be given when at the start of the tenancy:

The new regulations do not make specific provision for service of either the gas safety certificate or the EPC via email. The safest option for landlords will be to provide copies to every tenant at the beginning of the tenancy in paper format to minimise problems if a Section 21 is needed later on.

As with the old Section 21 notices the deposit still needs to be protected correctly and the prescribed information given to all relevant parties when the deposit was received. If the property is a House of Multiple Occupation (HMO) that requires a licence then this should also be in place before service.

Finally, the landlord will also not be able to serve a valid Section 21 notice if they are caught by the new legislation on retaliatory eviction. "Retaliatory what???" I hear you say.

What the heck is retaliatory eviction?

Just when you thought it couldn't get anymore complicated! Retaliatory eviction is when a landlord serves an eviction notice on a tenancy after the tenant asks for repairs or complains about conditions in the property. It's also known as 'revenge eviction' on the street. 

How does this affect Section 21s?

Landlords will not be able to serve a valid Section 21 if;

  • the tenant complains, in writing, to their landlord about the condition of their property, prior to it being served; and
  • repairs/improvements are not carried out or the landlord fails to respond adequately to the tenant’s written complaint within 14 days; and
  • the tenant has then complained about the same matters to the relevant local authority who have decided to serve an Improvement Notice in respect of the property or have carried out emergency remedial action themselves using their powers under the HHSRS.

Bear in mind that if the landlord has already had an Improvement Notice from the Council a Section 21 notice cannot be served for 6 months, but if the Section 21 was served before the tenant made the complaint it will still be valid. Making sense yet?

What defines an adequate response from the landlord?

An adequate response is one which defines the actions the landlord is proposing to take to deal with the complaint and sets out a reasonable timescale for doing so. 

Are there any exceptions?

Absolutely;

  • if an Improvement Notice is issued based on an issue caused by the tenant; or
  • if the landlord is trying to sell the property then the retaliatory eviction legislation does not apply.

How can I prove I have complied?

For our Landlord's peace of mind you'll be pleased to know we use the RLA checklist to ensure you are complying with these new Section 21 regulations. This is a checklist that the tenants can sign also at the beginning of their tenancy which confirms receipt of all the relevant documents. 

For those of you that have read this far, good on you. Now get yourselves ready for the next news piece on Smoke and Carbon Monoxide Alarm Regulation. Whoo Hoo!!!

Comments

Write a Comment

You must be logged in to leave a comment. If you do not have an account with Redbrick Properties you can signup here.