Attention Landlords and Tenants – Important Changes to the Section 21 Notice

Applicable to Tenancies created on or after the 1st October 2015

A new form of Section 21 Notice has been introduced applicable to sub-sections (1) (4)

Tenants must now also be provided with

  1. An EPC
  2. A Gas Safety Certificate
  3. The booklet “how to rent – the checklist for renting in England” available at https://www.gov.uk/government/publications/how-to-rent

Notice under Section 21 (1) and (4) may not be given

In the case of a tenancy which is not a replacement tenancy within the period of 4 months beginning with the day on which the tenancy began.

  1. In the case of a replacement tenancy within the period of 4 months beginning with the date on which the original tenancy began.

This does not apply if the tenancy arises under Section 5 (2) of the Act.

Proceedings for possession under Section 21 may not be begun after the end of the period of 4 months beginning with the date specified in the Section 21 Notice.

Notice under Section 21 (1) or (4) cannot be given where the landlord is in breach of a legal requirement placed upon him.

By an addition to sub-section 4 it appears that the date specified in the Notice does not have to be the last day of a period of the tenancy as a new Sub-Section 4 (a) says “In the case of a dwelling-house in England, subsection (4)(a) above has effect with the omission of the requirement for the date specified in the notice to be the last day of a period of the tenancy.”

New rules have been introduced preventing the landlord serving what is called a Retaliatory Section 21 Notice where a Notice has been served under Sections 11, 12 or 40 (7) of the Housing Act 2004.

A Section 21 Notice is also invalid where

(a) before service of the Section 21 Notice the tenant made a complaint in writing to the landlord regarding the condition of the dwelling at the time of the complaint and

(b) the landlord

  • Did not provide a response within 14 days beginning with the date on which the complaint was given.
  • Provided a response that was not adequate.
  • Gave a Section 21 Notice following the complaint.

(c) The tenant then made a complaint to the relevant housing authority about the same or substantially the same issues.

(d) The relevant housing authority served a relevant notice in relation to the dwelling in response to the complaint and

  • If the Section 21 Notice was not given before the tenant’s complaint to the local housing authority it was given before service of the relevant notice.

The regulations provide that an adequate response by a landlord is one which provides a description of the action which the landlord proposes to take to address the complaint and sets out a reasonable timetable within which that action will be taken.

This section seems to apply even if the requirement for the complaint to be in writing is not met by the tenant where the tenant does not know of the landlords postal or email address and makes reasonable efforts to complain as required but was unable to do so.

 

The legislation making the Section 21 Notice invalid does not apply

  1. as a result of the Notice under 11, 12 or 40 (7) of the Housing Act 2004 having been served in error.
  2. the relevant Notice under Section 11, 12 or 40 (7) of the Housing Act 2004 having been revoked or quashed.
  3. the decision of the local housing authority to refuse to revoke the Notice 11, 12 or 40 (7) of the Housing Act 2004 has been reversed.
  4. a decision of the relevant local housing authority to take action has been reversed.
  5. Where the operation of the relevant Notice has been suspended.

Invalidity of the section 21 notice does not apply where the condition of the dwelling house or the common parts that gave rise to the service of the relevant Notice is due to a breach by the tenant of

  1. The duty to use the dwelling house in a tenant like manner or
  2. An express term of the tenancy to the same effect.

There is a further exemption to invalidity where at the time the Section 21 Notice was served the dwelling house is genuinely on the market for sale and the new legislation introduces specific indicators in order to determine whether a property is genuinely on the market for sale or not.

Finally there are further exemptions which apply where the dwelling house is subject to a mortgage granted before the beginning of the tenancy and the mortgagee is entitled to exercise a power of sale and at the time the Section 21 Notice is given and the mortgagee requires possession of the dwelling house for the purpose of disposing of it with vacant possession in accordance with its powers of sale.

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