RESOURCES | Landlords beware: Retaliatory evictions and changes to Section 21 Notices

The Deregulation Act 2015 (the “Act”) was passed on 26 March 2015 and has introduced new rules that landlords must comply with before they can terminate a tenancy of a residential property let on an assured shorthold tenancy (AST) basis, writes Scott Birchall of Hill Dickinson.

These ‘rules’ must be carefully considered, as they impose some significant restrictions on a landlord’s ability to give a tenant a notice pursuant to Section 21 of the Housing Act 1988 (“Section 21 Notice”).

The Act covers a number of matters, but this note is limited to the effect the Act has on a landlord’s ability to terminate a tenancy following a tenant’s complaint (otherwise known as retaliatory evictions) and the form, content and service of a Section 21 Notice.

Commencement

The relevant parts of the Act came into force on 1 October 2015 and apply to all ASTs granted on or after 1 October 2015. From 1 October 2018, the rules will apply to any AST no matter when they were granted.

The rules apply to residential properties in England only.  ASTs granted in Wales will remain governed by the old rules.

Retaliatory Evictions                                            

The Act provides some protection for tenants from retaliatory evictions, by restricting a landlord’s ability to serve a Section 21 Notice in circumstances where the tenant has complained about the condition of their premises and the landlord fails to respond, fails to provide an adequate response or serves a Section 21 Notice on the tenant.

If a tenant makes a written complaint to the landlord (or the landlord’s agent) about the condition of a property, the landlord has 14 days to respond and to provide an adequate response. If the landlord fails to respond or serves a Section 21 Notice, the tenant can complain to their local housing authority (LHA).

While the Act states that the tenant’s complaint must be in writing, it makes it clear that the rules will still apply if the tenant does not know the landlord’s email or postal address or if the tenant has made every reasonable effort to try and notify the landlord of their complaint.

The LHA has, pursuant to the Housing Act 2004, the duty and power to investigate certain health and safety issues within a property and compel the landlord to remedy them. Should the LHA deem the property to be ‘hazardous’, the LHA may serve on the landlord an enforcement notice, requiring rectification of the hazard.

If the LHA does this, the landlord cannot serve a Section 21 notice on the tenant within six months of the date when the notice was served on the landlord or six months from the date when the operation of the notice has been suspended. Furthermore, any Section 21 Notice already served will be rendered ineffective and no further notice can be served for a further six months.

There are some limited exemptions, including:

• Where the condition of the property, or common parts, is due to a breach of the tenant’s duty to use the premises in a tenant-like manner;
• Where, at the time of the Section 21 Notice, the property is genuinely on the market for sale;
• Where the landlord is a private registered provider of social housing; or
• The premises were charged before the grant of the tenancy and the mortgagee wishes to exercise its power of sale and at the time the Section 21 notice is given requires vacant possession to exercise its power of sale.

It is imperative that a landlord responds to a tenant’s complaint about maintenance or the condition of the property within 14 days and that the landlord provides a satisfactory response by setting out the action the landlord intends to take and a reasonable timescale within which this action will take place. Failure to do so may result in the landlord being unable to remove the tenant.

Section 21 Notices

The Act has introduced a number of new rules regarding the form, content and service of a Section 21 Notice.

• The Act has introduced a new prescribed form for a Section 21 Notice (Form 6A). The prescribed form must be used when ending an AST granted on or after 1 October 2015. The new form is supposed to simplify the process for landlords and reduce the scope for error.
• A landlord will only be able to serve a Section 21 Notice once the tenant has resided in the property for at least four or more months. In the case of ‘replacement tenancies’ (i.e. a new tenancy but with the same parties), the relevant period is four months from the date on which the original tenancy began.
• A landlord will no longer need to specify the last day of the tenancy as the date on which the tenancy will come to an end. However, the date given must still not be earlier than two months from the date on which the notice is given.
• The Act has inserted a new Section 21A into the Housing Act 1988, under which a Section 21 Notice cannot be served until the landlord has complied with certain statutory obligations. The landlord has a statutory obligation to provide their tenants with gas safety and energy performance certificates. So, the landlord will only be able to serve a Section 21 Notice when these requirements have been complied with.
• Before serving a Section 21 Notice, the landlord must provide the tenant with certain prescribed information relating to the rights and responsibilities of the landlord and the tenant under an AST, including a copy of the Department For Communities and Local Government booklet, ‘How to rent, The checklist for renting in England‘.
• The tenant may be entitled to a rent rebate where rent has been paid in advance in respect of any period beyond when a Section 21 Notice has been served to terminate the tenancy and the tenant has vacated the property.
• The Act has also restricted a landlord’s ability to apply for an order of possession. In accordance with the Act, any claim for possession must be started within six months from the date the Section 21 Notice was given. If a Section 21(4) Notice is given (in respect of statutory periodic tenancies), the landlord must make a claim for possession within four months from the date of expiry of the notice. If the landlord fails to do so, they will need to serve a new Section 21 Notice.

Whilst the Act is intended to simplify matters and reduce the scope for error, landlords will need to be aware of the impact the Act will have on their ability to terminate a tenancy. It is imperative that they follow and comply with the amended procedure regarding Section 21 Notices if they wish to terminate a residential tenancy. We can provide advice and assistance to ensure that the correct notice is served.

This article was originally published through Place Resources