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Section 21 Notices: The ‘No Fault’ Eviction

Our People - Anthea Cowles
28 February, 2018

On Wednesday 21st February 2018, Panorama aired its latest investigation titled ‘Evicted for No Reason’. It dealt with a common issue I am asked about regularly by my clients; that of tenants with an Assured Shorthold Tenancy (aka ‘AST’) being evicted through ‘no fault’ of their own within 2 months.

This is an emotive issue because while landlords want to be able to recover possession of their property as quickly as possible, it can cause real problems for tenants when they can’t find a new property in such a short space of time.

Section 21 of the Housing Act 1988 sets out a method for a landlord to trigger being able to recover possession of their property. The provisions of the Deregulation Act 2015 (the “Act”) and The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015 (SI 2015/1725) (“Regulations”) effectively introduced new requirements for serving a valid Section 21 notice.

This currently only applies for ASTs that started on or after 1st October 2015. However, as of 1st October 2018 the provisions will apply to all ASTs in existence at that time

The Requirements

To use these provisions, landlords must serve a minimum of 2 months’ notice, have secured a tenants deposit in a government-backed Tenancy Deposit Scheme (TDS) and meet the requirements set out in the Deregulation Act 2015. For tenancies after October 2015, the provision means landlords are required to:

  • provide their tenants with the ‘Prescribed Information’

Landlords are required to provide tenants with the below in accordance with ‘The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 No. 1646’ at the commencement of the AST:

  1. An Energy Performance Certificate (EPC) for the property
  2. A current gas safety certificate
  3. A copy of the most up to date Department for Communities and Local Government’s booklet entitled ‘“How to rent: the checklist for renting in England” at the start of each AST.

As mentioned above, the new provisions and regulations only apply to ASTs that are granted on or after 1st October 2015 until 1st October 2018 when they will apply to all ASTs in existence at that time.

The stark reality for tenants is that there are few defences to this battle against eviction. Even then, defences usually are only a delaying tactic, but this extra time can be precious. An obvious defence is where the landlord defaults in meeting the specified requirements as above (aka a ‘technical’ defence). Alternatively, it may be that the tenant feels the eviction process has been ‘retaliatory’ in nature because, for example, they have made a complaint about the property’s condition or the Council has served an improvement notice on the property in the last 6 months. The property maybe a house in multiple occupation (HMO) and does not have a HMO licence from the council. Lastly, but less commonly, is a defence based on direct or indirect discrimination against a protected characteristic under the Equality Act 2010.

This just scratches the surface on some of the general issues with ASTs. Further changes are due to come into force with the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 which introduces a new measure to improve the energy efficiency of certain private rented properties amongst other changes – watch this space.

If you have any queries, especially if you have been served a Section 21 notice, please do not hesitate to contact me on 020 8492 2290 or by email ac@gnlaw.co.uk.

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Solicitor
Anthea Cowles is a solicitor working in the Housing/Landlord and Tenant and Wills, Trusts and Probate departments. She advises clients who are eligible to receive legal aid funding as well as privately paying clients.

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