Section 8 and Section 21 with an improvement order outstanding?

Hi Tony,

You could be in danger of falling under the accusation of retaliatory eviction with the deregulation act rules.

You may need to seek professional advice. See our tenant eviction page >> https://www.property118.com/evicting-tenants/

From Paul Shamplina's article on the Deregulation act and what it means for landlords >> https://www.property118.com/what-does-the-deregulation-act-2015-mean-for-landlords/87201/

"Deregulation act 2015 section 21

On 1 October 2015 further provisions in the Deregulation Act 2015 came into force to protect tenants against unfair eviction when they have raised a legitimate complaint about the condition of their home.

The legislation also requires landlords to provide all new tenants with information about their rights and responsibilities as tenants. This information includes such detail that a landlord cannot serve a Section 21 notice unless they have complied with certain legal responsibilities.

The government also introduced a new standard form that landlords must use when evicting a tenant under the ‘no fault’ (section 21) procedure. This makes it more straightforward for landlords to evict a tenant where it is legitimate to do so.

These provisions apply to all new assured shorthold tenancies that start on or after 1 October 2015. However, as of 1 October 2018 the provisions will apply to all ASTs in existence at that time.

1. Compliance with prescribed legal requirements

A Section 21 notice may not be given if the landlord is in breach of any legislation which relates to any of the below.

The condition of dwelling houses or their common parts
The health and safety of occupiers of dwelling-houses
The energy performance of dwelling-houses.

This means all landlords must provide tenants with an EPC and a Gas Safety Certificate before the tenancy begins. If at a later date the landlord wants to serve a Section 21 notice on a tenant, he will need to prove the tenant has been provided with these two documents. If they don’t do this then the landlord wont be able to use the section 21 notice.

2. Requirement of the landlord to provide Prescribed Information

At the start of each AST, landlords are now required to provide tenants with a copy of the Department for Communities and Local Government’s booklet entitled ‘How to rent: the checklist for renting in England’.

3. Prescribed form of Section 21 notices

The new Section 21 notice combines the two previous section 21 notices into a single use notice for both fixed-term and periodic tenancies. It‘s for use with new tenancies starting after 1st of October 2015 and all tenancies (regardless of when they started) from 1st October 2018.

4. Timing and Lifespan of a Section 21 Notice

From 1st October 2015, a landlord is now no longer able to serve a Section 21 notice within the first four months of the contractual term of the tenancy. This is to stop landlords and their agents serving notice at the start of a tenancy if they want to finish it at their convenience.

A Section 21 notice now also has a lifespan. Once a Section 21 notice has been given under a fixed term AST or a periodic AST, possession proceedings must be started within 6 months of the date the notice was given. If the landlord doesn’t do this then the possession notice is invalid and a new one will be needed.

Retaliatory eviction

The Deregulation Act 2015 contains provisions suspending the operation of section 21 in order to protect a tenant against retaliatory eviction.

Retaliatory Eviction occurs where a landlord takes steps to evict a tenant because the tenant has complained about the condition of the property, rather than carry out repairs.

The new process means that the tenant has to put in writing to the landlord his/her complaints about disrepair. The landlord has 14 days to respond to the tenant, setting out when they will access the property, look at the remedies and carry out repairs.

If the tenant isn’t satisfied and the landlord hasn’t carried out the repairs, the tenant can make a complaint to the local housing authority. Local councils have been given the power to serve an enforcement notice on the landlord, setting out “a reasonable timescale” for improvement works to be carried out. Landlords served with an Improvement Notice cannot issue a section 21 within six months of an enforcement notice being served."

Tony

The simple answer is "yes". You can do so pursuant to a Section 8 Notice. The Section 21 route may not currently be available due to the position as outlined by Neil above although it depends on the date of the tenancy agreement. Please contact me if you need assistance.

Gareth

I know of a recent case where the Section 21 was issued, it went to court, the judgement was issued against the tenant, he left on the date he had to and the EPC wasn't mentioned by anyone... But I suppose it is a gamble.

It think it may depend on what the improvement notice is for.

Section 8 with an improvement notice seems like an open call to the tenant to defend on grounds of disrepair.

Romain, you are correct that the improvement notice is a potential can of worms as the issue of disrepair is a live one. If the Section 21 route could be made available then this may assist with obtaining possession more efficiently with the documents and chronology of events here needed to consider and assess the most viable route.

Further to Neil Patterson's article above, "Timing and Lifespan of Section 21 Notice"

"A Section 21 notice now also has a lifespan. Once a Section 21 notice has been given under a fixed term AST or a periodic AST, possession proceedings must be started within 6 months of the date the notice was given. If the landlord doesn’t do this then the possession notice is invalid and a new one will be needed."

I am not sure if I have found a loophole around this lifespan problem, what if a landlord has not yet decided whether to start court proceedings and 4 months have lapsed out of the 6 months lifespan from the date of issue of Notice, so what if a landlord then serves another Section 21 notice at 4 months down the line, with a new date, which would be 4 months after the original date of first notice, thereby serving a new section 21 Notice overlapping the First one one, (which still has two months remaining) so this may give a landlord an extra 4 months continuation as the new notice served at 4 months after the first one, would ensure that when the first one expires, the second one takes over giving a total of 10 months for the Notice to run out from the date of first notice, to start proceedings.

Not sure if serving a second notice would automatically cancel the first on or can the two section 21 Notices run in parallel .