Landlord & Tenant law update: Section 21 Notice

This autumn, there are some very important changes coming into force due to the passing of the Deregulation Act 2015 earlier this year. This article is intended as a brief overview of the changes in respect of section 21 notices. These notices are used by landlords to notify tenants on Assured Shorthold Tenancies (ASTs) that they intend to bring the tenancy to an end in order to obtain possession of the property.

From 01 October 2015, section 21 notices will be subject to time restraints in respect of service and their use as a prerequisite to possession proceedings. The new provision has been coined the ‘use it or lose it’ possession, for the following reasons.

Firstly, a section 21 notice cannot be served within the first four months of the tenancy. It is currently possible to serve a notice at the start of a tenancy to avoid the need to wait for a notice’s expiry before issuing possession proceedings sometime in the future. The intention of the new provision is to avoid this practice.

Secondly, once served, a section 21 notice will only then be valid for six months as the basis of possession proceedings. After six months is up, the notice will be invalid for possession proceedings and a fresh notice will need to be issued.

A further change this autumn can be seen with respect to ‘retaliatory evictions’. Retaliatory evictions are typically when a tenant complains about the condition of the property and, instead of dealing with the problem, the landlord serves a section 21 notice to evict that tenant in the hope that they will find a new tenant who will not complain. For ASTs granted on or after 01 October 2015, landlords will not be able to serve section 21 notices where tenants have made a complaint about the condition of the property.

Landlords should note that this new provision is with respect to the wider, catch all term ‘condition’ rather than the landlord’s repair obligations under section 11 Landlord & Tenant Act 1985. A tenant who complains of, for example, damp and mould at the property will therefore be protected from receiving a retaliatory section 21 notice. Tenants must inform their landlord in writing of their complaint and landlords must respond in writing within 14 days. The landlord’s response must inform the tenant of what they intend to do about the issue and the timescale involved. Landlords should provide an address or email address to the tenant however, as the provisions allow for a tenant to make a reasonable effort in contacting the landlord.

If the landlord fails to respond, responds and subsequently serves a section 21 notice, or responds inadequately, the tenant can refer the matter to their local authority. If the local authority agrees with the condition complaint, it may issue an improvement notice or emergency remedial works order. A section 21 notice cannot be served within six months of the date of either of these.

It should be noted that the above applies only to ASTs granted on or after 01 October 2015. For ASTs granted before that date, these provisions will not apply even if the AST changes from a fixed-term onto a statutory periodic basis.

Naomi Newell from our Disputes team can be contacted by email ncnewell@cozens-hardy.com or by phone: 01603 625231.