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The Section 21 Minefield – More Traps for Landlords!

A valid notice served under s.21 Housing Act 1988 compels a Court to grant a Possession Order without the landlord having to establish one of the grounds in the housing legislation.  The correct service of s.21 Notices has always been an area rife with possibilities for error.  The De-Regulation Act 2015 has brought into force changes to the s.21 procedure for Assured Shorthold Tenancies (“AST”) entered into on or after 1 October 2015.  Fortunately, there is a glimmer of hope for landlords in that a statutory periodic tenancy arising on the expiration of a pre-1 October 2015 AST will continue to be governed by the old s.21 regime.  

For any AST which begins on or after 1 October 2015 the landlord will not be able to serve a s.21 Notice in the first four months of the tenancy.  In the case of a replacement tenancy, that is a new tenancy with the same parties and premises, the relevant period is four months from the day on which the original tenancy began.   

In addition, if a landlord wishes to take possession proceedings, they must be started within six months of service of the s.21 Notice.  If more than six months have elapsed, a new s 21 Notice will have to be served. 

Under the old regime the landlord had to specify the last day of a period of the tenancy as the date on which the letting would come to an end.  That requirement has been removed (which may be seen as an advantage by some landlords and letting agents) but anyone serving a s21 Notice needs to know that the date specified in it must still be (1) not earlier than two months from the date on which the s21 Notice is given and (b) not earlier than the earliest date on which the tenancy can be brought to an end under the traditional common law rules by means of a Notice to Quit.  There is probably still plenty of room for error here! 

Where a tenancy has started after 1 October 2015 the service of any Improvement Notice by the local authority under the housing health regime or if the local authority carries out any emergency remedial action to a property, will mean that the landlord cannot serve a s.21 Notice for six months.  When a tenant makes a complaint in writing about the condition of a property the landlord must respond in writing within 14 days setting out what he intends to do about it and the timescale in which he will act.  If he either fails to reply or replies by serving a s.21 Notice or gives a reply that is inadequate, then the tenant can complain to the local authority which will have to carry out an inspection.  If an Improvement Notice is then served or the local authority takes remedial action, any s.21 Notice already served will be ineffective and no further s21 Notice can be served for six months.  In addition to the extra strain that this might place on local authorities, landlords may well find themselves subject to more complaints about the conditions of their properties with tenants “playing the system” and making tactical complaints rather than ones which are justified. 

If the s.21 Notice procedure is going to become more complex and subject to more tactical complaints, landlords might consider claims for possession using the grounds in the Housing Act and relying on a Section 8 Notice. 

Landlords and their agents will need to study these changes and the new s.21 Notice forms carefully because their procedures will undoubtedly need to be revised and updated. 

For further advice contact James Staton on 01274 306 000.

About the Author

James Staton

Partner

Jim Staton has been a litigation solicitor for 36 years and has headed the Schofield Sweeney litigation…

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