Section 21 – time limits, forms and retaliatory eviction

This is the fifth post in my 2017 Legal Update series.

We have had two posts already in this series on section 21 but there is still a way to go. Today I am going to be looking at the remaining ‘Deregulation Act’ amendments.

If you are in Wales, you can ignore this post as these rules don’t apply to you. But don’t think you are let off the hook as new rules will be coming into force in Wales later once the Renting Homes (Wales) Act 2016 is implemented.

Note that the rules in this post will only apply to tenancies in England which started or were renewed on or after 1 October 2015.

However, if by any chance you are reading this after 1 October 2018 – note that these rules will apply to ALL assured shorthold tenancies.  Provided they are in England.

Time limits

Under the old rules, you could serve a section 21 Notice on day one (or preferably day 2) of the tenancy and then base a claim on it 5 years later – so long as no new tenancy agreement had been given to the tenant.

But no longer! The Deregulation Act brought in ‘use it or lose it’ rules which mean you can’t use your section 21 notice more than six months after it was served (or in some cases more than four months after its expiry date).

There are also restrictions on when you can serve your notice.

It cannot now be served during the first four months of the FIRST tenancy. Which means that you can serve it at any time during a renewal (so long as the original tenancy was over four months long).

I am afraid though that this means that for a six months fixed term it is not possible to serve a valid section 21 notice which expires on the last day. Sorry.

Section 21 Forms

One of the problems with section 21 notices and the mistakes that people kept making, was that we did not have an official form.

Thankfully this has now been provided and must be used for all English tenancies which started or were renewed on or after 1 October 2015.

If your tenancy started before then and has not been renewed since, I would advise that you use one of the older forms though. The prescribed form sets out all the legal obligations under the Deregulation Act – which don’t apply to you. So (unless you have complied with them voluntarily – not a bad idea) it could cause confusion.

As set out above, after 1 October 2018 the new official form must be used for ALL assured shorthold tenancies in England (but not in Wales, although the Welsh will no doubt have their own form by then).

Retaliatory Eviction

Do you remember in an earlier post in this series, I talked about tenants whose landlords threatened to evict them if they complained about the condition of the property?

That is known as ‘retaliatory eviction’ and is a bit of a scandal. After all tenants should not be at risk of being evicted if they simply ask for their property (for which in many cases they are paying quite a high rent) to be put into proper repair.

Tenant’s organisations have been calling for something to be done about it for years, and at last measures were put in place in the Deregulation Act 2015. I should emphasise that for most landlords it won’t be a problem.

Here’s how it works:

If a Local Authority serve an ‘improvement notice’ on a landlord, requiring them to do works to put the property in a proper condition, then the landlord will not (in most cases) be able to serve a valid section 21 notice during the following six months.

Also – if the tenant has previously complained about one or more of the items mentioned in the improvement notice – any section 21 notice served by the landlord after their complaint and before the service of the improvement notice – will be rendered invalid.

The act also provides that when tenants make a complaint the landlord must provide a response within 14 days:

• Saying what they intend to do to address the complaint, and
• Giving a reasonable timescale for doing it

However, it is not clear whether or not complying with this will save the landlord’s section 21 notice served in advance of the improvement notice. Which is odd.

I would emphasise again that for most landlords, the retaliatory eviction measures are not going to be a problem – as their properties are too good to ever be the subject of an improvement notice.

Improvement notices can only be served by Local Authority Environmental Health Officers after an inspection of a property has disclosed a ‘category 1’ or ‘category 2’ hazard. These only apply to serious problems and an EHO is not going to serve an improvement notice on a minor issue just to please a tenant.

So, you do not need to worry about malicious or ‘devious’ tenants arranging for this simply so they can stay in the property without paying rent.

Further information:

There is a lot of information about all this on my Landlord Law Blog.

My Landlord Law membership site has a lot of guidance on section 21 including a guide which you can follow to check that you have complied with all the rules.   We also have the new section 21 notice (with a special version for agents to use) as well as the old notice for pre 1/10/15 tenancies and for landlords in Wales.

If you want to bring a claim for possession against your tenants using section 21, Landlord Law also has a detailed guide to help you bring proceedings without having to use a solicitor.

Members can also ask me ‘quick questions’ in the members forum area.

You can find out more about Landlord Law here

This is the end, thankfully, of our look at section 21. Next time I will be writing about the new rules in the Housing and Planning Act 2016.

Tessa Shepperson is a specialist landlord & tenant lawyer and runs the popular Landlord Law online information service.

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