In Section 21 Notice: A Landlord’s Guide to the "No-Fault" Eviction we looked at the Section 21 Notice possession procedure and some of the differences between section 8 and section 21.
In this blog, we look more in detail at the legal requirements that landlords must have complied with before serving a valid Section 21 Notice to evict an assured shorthold tenant without having to prove a ground or reason.
Section 8 v Section 21
These preconditions to the service of a valid Section 21 Notice concern the landlord’s compliance with legal requirements unrelated to possession proceedings. They are safeguards put in place for the benefit of assured shorthold tenants because of their peculiarly weak security of tenure and the fact that they can be evicted without a reason. This highlights a big difference between Section 8 and Section 21 as these limits only affect the validity of a Section 21 Notice, not a Section 8 Notice.
Tenancy Deposit Protection Rules
The first precondition to the service of a valid Section 21 Notice concerns the lawful treatment of any deposit paid by the tenant or a third party in respect of the assured shorthold tenancy (AST). Historically, many tenants lost their deposit at the end of their tenancy or withheld the last payment of rent to make up for it. This was used to cause a lot of court litigation and unfair outcomes for both landlords and tenants and the Parliament introduced tenancy deposit protection rules.
Any deposit paid in respect of an AST must be protected by the landlord or their agent in a government-approved tenancy deposit scheme under Section 213 of the Housing Act 2004.
There are two types of tenancy-deposit-approved schemes – custodial or insurance-backed. Each scheme has its own rules to be complied with. The current scheme administrators are:
A landlord or their agent cannot give a valid Section 21 Notice to their tenant if they did not protect the deposit in an authorised scheme and/or did not provide all the prescribed information to the tenant and the person who paid the deposit on the tenant’s behalf, within 30 days of receiving the deposit.
It is not enough for the landlord or agent to provide a copy of the protection certificate issued by the tenancy deposit scheme. They must give to the tenant and the person who paid the deposit all the information and documents set out in Article 2 of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007.
These include all of the following:
- the name, address and contact details of the scheme administrator of the authorised tenancy deposit scheme where the deposit is protected
- the information leaflet supplied by the scheme administrator explaining the operation of the provisions of the tenancy deposit protection legislation in sections 212-215, and Schedule 10, of the Housing Act 2004
- the procedures that apply under the scheme regarding the repayment of the deposit at the end of the AST, what happens if either the landlord or the tenant is not contactable at the end of the tenancy, how the disputes about the amount of deposit to be returned will be resolved, and which facilities are available under the scheme for out-of-court dispute resolution
- the specific information regarding the deposit and the related tenancy, such as the amount of the deposit paid, the address of the property to which the tenancy relates, the name, address and contact details of the landlord, the name, address and contact details of the tenant or joint tenants, the name, address and contact details of the person who paid the deposit on the tenant’s behalf, and the circumstances when all or part of the deposit may be retained by the landlord under the tenancy agreement
- a certificate signed by the landlord confirming that the information provided to the tenant and the person who paid the deposit is accurate, and the tenant has been given the opportunity to sign it to confirm that the information is accurate. This certificate is different from the deposit protection certificate issued by the scheme.
Gas Safety and Energy Performance Certificates
The second precondition to the valid service of a Section 21 Notice relates to the provision of information regarding the condition of the rented property, the health and safety of the tenants, and the energy performance rating.
Under Section 21A of the Housing Act 1988, a landlord cannot serve a valid Section 21 Notice to evict a tenant until they have provided a copy of the current gas safety certificate and the energy performance certificate of the rented property. The landlord can provide the certificates at any time before serving the notice or together with the notice. There are special rules covering the provision of such information to joint tenants.
How to Rent Guide
How to rent: the checklist for renting in England is Government guidance for tenants and landlords in the private rented sector which highlights their respective rights and responsibilities. It provides information about what to check before renting, what it means to live in a rented property, what happens at the end of a tenancy, and what to do if things go wrong.
Under Section 21B of the Housing Act 1988, a landlord cannot serve a valid Section 21 Notice to end an AST until they have provided the current version of the guide. The guide can be given to the tenant at any time before serving the notice or together with the notice. Unless the tenants have confirmed they are happy to accept service of notices and other documents by email, the landlord must provide a paper copy.
This requirement only applies to private landlords; not to social landlords such as councils and housing associations.
Houses in Multiple Occupation and Selective Licensing of Private Rented Properties
This precondition applies only if the rented property is classed as a House in Multiple Occupation (HMO) requiring a licence.
Under Section 75 of the Housing Act 2004, a landlord of a property requiring a licence cannot serve a valid Section 21 Notice on their tenants until they can show that their property has a licence or is exempt.
The same rule applies to private landlords of rented properties situated in an area of selective licensing where the local authority requires all private landlords to obtain a licence to rent.
Prohibited Payment or Banned Fee
Since 2019, the Tenant Fees Act has prescribed the payments and fees that a landlord can lawfully charge a tenant in connection with a tenancy, including an assured shorthold tenancy (AST). Any payment not expressly allowed in law is prohibited and renders a Section 21 invalid.
A landlord can only request a tenant to pay:
- rent
- a tenancy deposit (capped to a maximum of five or six weeks’ rent)
- a holding deposit (up to a maximum of one week’s rent)
- a fee in the event of late payment of rent, losing a key, or breaching the tenancy agreement in another way (if and as expressly stated in the tenancy agreement)
- a payment for changes to the tenancy agreement requested by the tenant during the tenancy, such as change of joint tenants (capped to a maximum of £50 per change)
- service charges for council tax, utility bills, and TV licence when these are included in the tenancy agreement to be paid directly to the landlord or their agent.
Most of the permitted payments are capped. Any part of a fee that exceeds the permitted amount is a prohibited payment. As well as not being able to serve a Section 21 Notice, a landlord or agent charging tenants a prohibited fee can be prosecuted and fined up to £30,000.
Retaliatory Eviction
A landlord cannot serve a Section 21 Notice in response to the tenant complaining about disrepair in the property or the common parts controlled by the landlord, such as the stairs in a block of flats or the roof.
This is known as retaliatory eviction and it is prohibited when the tenant makes a complaint to the landlord about the poor condition of their property and, rather than making the repair, their landlord serves them with an eviction notice.
Protection for tenants against this practice has been in place since 2015, but it is very technical and requires the involvement of the local authority who must serve a notice of enforcement. There are also many exceptions such as when the disrepair was caused by the tenant.
How We Can Help
The service of a valid Section 21 Notice requires technical and in-depth knowledge of all legal requirements applicable to landlords and agents. The tenant will have a full defence to the possession claim, even if just one of the requirements for the valid service of the notice is not fulfilled, with the need to start the process again from the start. Unnecessary delays in the recovery of the property and fatal mistakes can be prevented by instructing an experienced Landlord and Tenant Law Practitioner who will ensure compliance with the rules or invoke the appropriate exceptions applicable to the circumstances. They can also advise on the best strategy and the most appropriate course of action between Section 8 vs Section 21. As residential property law experts, our solicitors can help landlords with advice and representation on their repossession matters. Contact us on 0330 173 6983 or send us an email at info@witansolicitors.co.uk.
