Can I issue S21 during counterclaim situation?

Hi Jennifer,

My concern here is that they are obviously trying to use the Deregulation act to stop you serving a Section 21.

Please see "Retaliatory Eviction and the Deregulation Act 2015"
>> https://www.property118.com/retaliatory-eviction-deregulation-act-2015/

And "What does the Deregulation act 2015 mean for Landlords?" >> https://www.property118.com/what-does-the-deregulation-act-2015-mean-for-landlords/

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.

I would recommend you seek profession legal guidance from Paul Shamplina's team at Landlord Action or The Sheriffs office. There are contact forms at the bottom of both the above articles.

Reply to the comment left by Neil Patterson at 12/09/2019 - 15:28
Hi Neil - thanks for your response. No one has attempted to stop me serving one. I am just wondering if it is worth serving one myself if it is going to be perceived as retaliatory. It isn't at all. I have evidence to show that I have asked the tenant since Oct 18 to clear up the house etc. It wasn't until I issued a Section 8 citing rent arrears and we went to court that invoked a duty solicitor appointed on the day to represent her, ask about repairs. The bandwagon was well and truly jumped on then by her appointed representative to make the issue of repairs something more than it was (no disrepair in evidence). While this counterclaim for disrepair plays out in court, the issue of tenant neglect still goes on as a sideline. Her representative is aware of the communication between ourselves and the tenant and clearly they wont want to bring the subject up as it shows the tenant in a bad light - but - the reality is she is really making the house go into disrepair by her inaction since Oct 18 to now and it is not getting any better. What can I do? While I do not have to state the reason for it, I am happy to do so as it completely relates to tenant neglect BEFORE the counterclaim was issued - surely by definition the timescales show this cannot be down to retaliation but reality?

This won’t be helpful in any way, but I genuinely want to know your answer…why did you not just issue a s.21 in the first place? Why doesn’t everyone just use s.21 (arrears or no arrears)? Two weeks over two months (which can be creatively cut down) is not worth the possibility of ending up in this mess.
Deregulation Act (2015) states:
“A section 21 notice given in relation to an assured shorthold tenancy of a dwelling-house in England is invalid where—
(a) before the section 21 notice was given, the tenant made a complaint in writing to the landlord regarding the condition of the dwelling-house at the time of the complaint,
(b) the landlord—
(i) did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given,
(ii) provided a response to the complaint that was not an adequate response, or
(iii) gave a section 21 notice in relation to the dwelling-house following the complaint,
(c) the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord,
(d) the relevant local housing authority served a relevant notice in relation to the dwelling-house in response to the complaint, and
(e) if the section 21 notice was not given before the tenant’s complaint to the local housing authority, it was given before the service of the relevant notice.
‘Relevant notice’ means—
(a) a notice served under section 11 of the Housing Act 2004 (improvement notices relating to category 1 hazards),
(b) a notice served under section 12 of that Act (improvement notices relating to category 2 hazards), or
(c) a notice served under section 40(7) of that Act (emergency remedial action)”

Having read the exacting process above, which doesn’t seem to be the case with you, I don’t think you’d be prevented from serving a s.21. Two months takes you to mid-Nov, plus wait-time for a Court date. You really do need that ‘creativity’ I mentioned earlier.

We had a difficult tenant (last one out of an HMO that we needed major upgrades ahead of the new HMO regs from Oct 2018). His legal aid solicitor also used the disrepair and counterclaim route against our s8 (arrears and possession) claim, delaying that process in ways that kept causing adjournments.

We then started a new s21 process (just for possession), and the solicitor then forced the court to combine the two processes, in such a way that it caused more adjournments.

A new judge agreed to consider the s21 first, and upheld a previous s21 judgement in our favour, despote the sol's arguments trying to derail s21 on procedural steps (we had all the evidence).

This then gave us leverage to have the tenant agree to drop the counter-claim in exchange for our dropping the s8 arrears claim, and to get a couple of weeks extra to vacate. The tenant did leave on the day the judge had set (with our agreement), but the fact that the tenant had noticed of the eviction date from the bailiffs must have helped.

In summary, in our case the s21 *did* help us with the s8 and counter-claim, but you will need plenty of evidence to make sure the s8 can't be overturned. Your sols will want to charge double for dealing with two claims (s8 and s21) even though it's actually the one situation.

Don't use Solicitors - is the moral of the story.
PossessionFriend.uk
There are other options, we've got Disrepair counter claims ongoing - it is possible to win some of them you know.
If the disrepair is such that Local Authority would Not consider serving an Improvement Notice, then Retaliatory eviction won't apply.
You need good advice and competent, bold handling of the matter.

There is nothing I know of in legislation that says a S21 notice is invalidated by any legal action by the tenant.

Issue one now.

If it turns out on legal advice that legal action by the T invalidates it, then you do not take it to court.

An update....I checked over the Deregulation Act and found there is no reason why I can't issue a S21 as I have detailed the reasons as a direct result of tenant responsibilities (lack of) and in total deference to using the property in a 'tenant like manner'. (despite not having to give a reason at all). A S21 is winging its way to the tenant as I write...thanks for the feedback all 🙂

Reply to the comment left by WP at 17/09/2019 - 08:45
Unfortunately you won't beat the S.8/counterclaim to Court with it though.

Reply to the comment left by Luke P at 17/09/2019 - 11:14
True, but the counterclaim is unwarranted and we are looking to get it struck out. At least issuing a S21 means I will have a tenant leave date at some point - which if I am lucky will be before the trial date set for the counterclaim to go before the judge. Ever hopeful! lol!

Reply to the comment left by WP at 17/09/2019 - 11:39
hi, im ging trhought eh exact same thing i would love to know how you got on