Section 21 Notice of Seeking Possession

Understanding the law

Landlords seeking to regain possession of their property using the no-fault route need to be aware of important legislative changes that came into effect on 1 October 2015. These changes relate to any new tenancies started on or after that date.

The changes effect the process a landlord must follow if they wish to regain possession of their property using a notice of seeking possession under Section 21 of the Housing Act 1988 (as amended).

Provision of certain documents

A Section 21 notice cannot be used unless the landlord has provided the tenant with copies of the following documents:

  • A valid energy performance certificate;
  • A valid gas safety certificate; and
  • A copy of the DCLG (Department for Communities and Local Government) booklet 'How to rent: the checklist for renting in England'.

Yes, even failing to provide a tenant with this DCLG booklet could invalidate the Section 21 possession process and so it it’s vital to get this right.

The regulations point out that the DCLG booklet may be subject to change over time and the landlord must provide a copy of the current version in place at that time. A new version of the booklet was published on 1 February 2016 and you can download a copy from the gov.uk website. You will find the previous versions available to download at the bottom of this page.

We would suggest that the landlord retains copies of the documents provided and also asks the tenant to sign to confirm receipt. Otherwise, there will be no audit trail to prove compliance.

The regulations state that the DCLG booklet must be provided in hard copy. The landlord can only email the tenant a copy of the booklet if they have notified the landlord, or a person acting on their behalf, of an email address at which they are content to accept service of notices and other documents given under or in connection with the tenancy. That’s what the regulations say.

We would suggest you don’t just send the tenant a web-link to the document on the gov.uk website as this method of provision is not specified in the regulations and so it may be ruled invalid.

Other requirements

A landlord is unable to use a Section 21 notice of seeking possession unless they have complied with tenancy deposit protection legislation and given the tenant the prescribed information about how their deposit has been secured.

A landlord is also unable to use a Section 21 notice of seeking possession if they are renting out a property that needs to be licensed by the council but is unlicensed. If your property is in London, you can find full information on all the mandatory HMO, additional and selective licensing schemes by clicking on the ‘Select borough’ link at the top of this page. If your rented property is outside London, you will need to check with the local council as we don’t yet cover your area.
 
A new prescribed section 21 notice

Prior to 1 October 2015, there was no prescribed format for a section 21 notice of seeking possession. For all tenancies started on or after 1 October, the landlord must now use the correct prescribed form.

This is where is gets even more complicated. On 7 September 2015, the government made new regulations (SI 1646/2015) that prescribed the new form to be used from 1 October 2015.

However, various experts in the property industry noticed drafting errors in the new prescribed form. As a result, on 27 September 2015 the government made further regulations (SI 1725/2015) that introduced an amended version of the form. You can view the regulations here

The government have published the new prescribed 21 notice as an editable PDF document that you can download from the gov.uk website. Follow the link and you will also find guidance notes to accompany the new form.

Retaliatory eviction 

It is more important than ever that landlords maintain their properties in good repair as the sanctions for letting out poor quality and unsafe homes are becoming more stringent. Further changes have been brought in under section 33 of the Deregulation Act 2015.

From 1 October 2015, if the council serves a Housing Act 2004 Improvement Notice or Emergency Remedial Act notice on the landlord, then they will be unable to serve a Section 21 notice of seeking possession within six months of the council’s notice being served. These notices can be served by the council for category 1 or 2 hazards under the housing health and safety rating system (HHSRS). If you want to find out more about the HHSRS, we have provided further information here

It is worth pointing out that most councils also charge the landlord a fee – often around £300 – for serving an Improvement Notice and so that is another reason to make sure the property is maintained in good and safe condition.

Even if the Section 21 notice of seeking possession was served before the council serves one of these notices, it can still be invalid in certain circumstances. A section 21 notice given in relation to an assured shorthold tenancy of a dwelling-house in England is invalid where:

(a) before the section 21 notice was given, the tenant made a complaint in writing to the landlord regarding the condition of the property at the time of the complaint; and

(b) the landlord:
(i) did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given,
(ii) provided a response to the complaint that was not an adequate response, or
(iii) gave a section 21 notice in relation to the property following the complaint; and

(c) the tenant then made a complaint to the council about the same, or substantially the same, subject matter as the complaint to the landlord; and

(d) the council served a Housing Act 2004 Improvement Notice or Emergency Action Remedial notice in relation to the property in response to the complaint; and

(e) if the section 21 notice was not given before the tenant’s complaint to the council, it was given before the service of the Housing Act 2004 notice.

You might need to read this section a few times before it all makes sense. In summary, landlords need to make sure they respond promptly to all tenant complaints. Remember that the response to the complaint should be sent in writing within 14 days and it is important to retain copies of all correspondence.

The 4 month rule

Under section 36 of the Deregulation Act 2015, a Section 21 notice of seeking possession can no longer be served within 4 months of the start of a new tenancy. You should refer back to the legislation to find out more.

The legislation also sets down maximum time limits for starting possession action once a Section 21 notice has been served.

What to find out more?

You can read the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 here.

You can read the Deregulation Act 2015 here.

You can read the government guidance on retaliatory eviction and the Deregulation Act 2015 here.

Please note that this information is only intended as a basic overview of the legislative changes that took place on 1 October 2015. This is a complex area of law and we would strongly recommend that landlords seek independent specialist advice to ensure that they follow the process correctly. You may also wish to refer to our disclaimer below.

Sign up to our London Property Licensing newsletter
Water for Kids charity advert
Advertise your business here
Mcdowalls property licencing service