Tenants refusing access – help with Section 21

Hi Lucy,

As you admit yourself you are not a specialist in this area and not many people are so the best advice I would give the owners is to seek professional help as from reading many such scenarios I can see this getting very difficult.

Please see our tenant eviction page >> https://www.property118.com/evicting-tenants/

Please see our two articles in our series fro Tessa Shepperson of Landlord Law:

https://www.property118.com/section-21-time-limits-forms-retaliatory-eviction/

https://www.property118.com/stop-evictions-going-wrong/

Hi Lucy
Sorry to read about your friends' problems. I recommend for their interest and yours that you take proper legal advice. It looks as if the tenants can't/won't pay but will use every trick in the book to spin things out. You have identified some problems already. You may have to repay the deposit as it was lodged late (and be faced with a claims for 1 to 3 x compensation)! There may be other issues as well and a professional can guide you.

Please also see Paul Shamplina's article on the Deregulation Act >> https://www.property118.com/what-does-the-deregulation-act-2015-mean-for-landlords/

Deregulation Act 2015 tenancy deposits

The requirement to protect a tenancy deposit taken for an assured shorthold tenancy in England and Wales was introduced on 6 April 2007, following its inclusion in the Housing Act 2004.

Deposit protection legislation was introduced because the government recognised many deposits were being unfairly withheld at the end of a tenancy. So the aim behind the Tenancy Deposit Protection is to raise standards in the lettings industry and ensure tenants are treated fairly at the end of the tenancy.

The legislation covers virtually all new assured shorthold tenancy contracts used by letting agents and landlords to let a property in England and Wales.

Since the Tenancy Deposit Scheme (TDS) legislation came into force, there have been a number of cases before the courts in which the wording of the legislation has been under scrutiny. These cases include Superstrike Ltd v Rodrigues and Charalambous v Maureen Rosairie Ng.

But overall the Deregulation Act 2015 has provided much needed clarification on the steps that a landlord must take to comply with TDS legislation.
Deposits taken before 6th April 2007 and tenancies that became periodic before April 2007

Deposits don’t need to be protected if a tenancy deposit was received for a fixed term tenancy before 6th April, or if the landlord holds the deposit against a statutory periodic tenancy, which also started before April 2007.

However, if a landlord wishes to gain possession of the property under Section 21 of the Housing Act 1988, the deposit must be protected and the Prescribed Information issued to the tenant prior to serving the Section 21 notice.

Landlords will not face any financial penalties for non-protection of the deposit.
Deposits taken before 6th April 2007 and tenancies that became periodic after April 2007

Deposits taken before 6 April 2007, for tenancies that are still running and have moved onto a periodic tenancy on or after this date, now need to be protected in a Tenancy Deposit Protection scheme. If a deposit remains unprotected, the landlord could potentially face a fine.
Deposits taken on or after 6 April 2007

Landlords who took a deposit on an assured shorthold tenancy (AST) after 6th April 2007 and correctly protected and served the Prescribed Information to their tenant do not need to reissue the Prescribed Information to the tenant on future renewals of the AST, or if the AST rolls into a statutory periodic tenancy.

This is so long as the tenancy details haven’t changed (i.e. landlord, tenant and property information) and the deposit remains in the same tenancy deposit protection scheme.

Prescribed Information can include details of a person representing the landlord. The act confirms that where an agent has protected the deposit on behalf of the landlord, the agent’s contact details may be provided in place of the landlord’s.

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.

Reply to the comment left by Neil Patterson at 27/09/2017 - 15:39
Hi Lucy

The Deregulation Act doesn't apply to this tenancy (currently only ASTs from 1 October 2015). This means there is no requirement for tenants to be served How to Rent, gas safety certificate or EPC. It also means the tenants can't use disrepair as a defence to s.21.

However, they may be able to use the late protection of the deposit as a defence. For ASTs dating from 6 April 2007, the deposit must be protected within the time frame specified by the scheme at the time, and certainly within the 30 days of payment mandated by statute (more recent deposits must simply be protected within the 30 days). The prescribed information must also be served within those time frames too. The landlord must be able to prove service.

If you are unable to prove deposit was protected and service of PI in time, your only remedy is to repay the deposit. Allow at least 4 working days for a cheque to clear before serving s.21.

Your authority to serve notice. Before serving notice on the tenants, get a letter signed by the property owners stating they authorise you to act as landlord, then serve a notice (a simple letter will do) on the tenants informing them of your name, an address within England or Wales they can serve notice on you at, and if you wish, phone, email etc (this is known as a s.48 notice).

On a separate note, make sure you keep records of all the attempts you've made to gain access to the property, and ask tradesmen if they'll give you a short statement about being unable to gain access. I would also encourage the tradesmen who've been racially abused by these tenants to report it to the police and get an incident number. No one should have suffer such appalling harassment simply for trying to do their job.

You only need a gas safety certificate (for each gas appliance) if the property has a gas supply in use.

Make sure you keep very clear records of attempts to repair/inspect whatever they report.

You would not want them trying to sue you for falling through the rotten floor that you have failed to repair.

Hi Lucy, this could become very complicated, there are lots or rabbit holes and trip wires and as you have said, it's not your field. I would strongly recommend you engage with a solicitor who is expert on tenancy legislation. It is highly likely that you are going to end up needing a solicitor anyway, early engagement with one will be to your advantage. If you intend to proceed on your own I would be concerned that you may be considered an "agent". To be an agent you must be a member of an ombudsman, insured etc. Best you should offer is to facilitate the landlords during their liaison with a solicitor, this in it's self would be a significant help.

Hi Lucy, I agree with the other posters. You have a can of worms here and really do need some professional advice. If you join the National Landlords Association (about £80) you will be able to access their free helpline. The helpline may deem your situation to be too complicated, but its worth a try. Its my understanding that a landlord can enter a property without the tenant's consent for a genuine emergency. Rotted floor joists are an obvious H&S issue, so maybe you could write to the tenant, quoting the relevant legislation, to say you will be visiting and require entry. Even so, I would emphasise you need professional advice.

Reply to the comment left by Annie Landlord at 29/09/2017 - 11:56
Hi Annie

I agree - Lucy should definitely join the NLA, RLA or Landlords Guild where she will get as much advice as she needs every step of the way plus free documents and guidance.

However, the advice I gave her in my post is exactly what myself or my colleagues would have told her on our advice line .

Also, I reiterate my point about making herself the landlord, not just an agent. She will then have the right to attend any court hearings in place of the owners. The only disadvantage is change of landlord usually necessitates a court hearing for s.21, but there will be hearing anyway if tenants defend.

Totally get professional advice.

As for your friends (and anyone/everyone who is in property) - they should learn how to manage tenancies correctly including requirements for moving in, and legals for eviction etc.

I'm always amazed at how little landlords know - go on a course and get trained up.

I've done the NLA course many times - and i'm due to go again in the next 6 months to make sure I'm up to date too.

Daniel Latto