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May 10, 2017

RESTRICTIONS TO OBTAINING SECTION 21 POSSESSION

Before a landlord of an assured shorthold tenancy (AST) may rely upon a section 21 possession notice he must consider the relevance of the following issues:

  1. The supply of a ‘prescribed requirement’
  2. Security of tenancy deposits
  3. A moratorium for the first six months of the tenancy
  4. Houses in Multiple Occupation/ Unlicensed Premises
  5. Retaliatory Evictions

 

  1. Prescribed Requirement

Section 21A of the Housing Act 1988 sets out that a section 21 notice may not be given at any time when the landlord is in breach of a ‘prescribed requirement’.

The Assured tenancy Notices and Prescribed Requirements (England) Regulations 2015/16 sets out the notice requirements for a landlord. This does not apply to a private registered providers of social housing. The landlord must provide the tenant with:

  1. Regulation 2(a): An Energy Performance Certificate (EPC)
  2. Regulation 2(b): Gas Safety Certificates (annually)
  3. Regulation 3(3): The ‘How To Rent’ DCLG Booklet

This information may be sent via email where the tenant has given an email address or where the tenant has indicated that he is content to accept service of notices and other documents.

  1. Tenancy Deposits

A section 21 notice cannot be served if the tenancy deposit scheme rules have not been followed. Effective from 6 April 2007 and subject to amendments, sections 212 -215 of the Housing Act 2004 requires all landlords of an assured shorthold tenancy (AST) to:

  1. Comply with the ‘initial requirements’ of the tenancy deposit scheme and
  2. Provide the ‘prescribe information’ of the scheme to the tenant.

The Initial Requirements

Section 213(3) requires a landlord to secure the tenancy deposit with an authorised scheme within 30 days of having received the deposit.

Prescribed Information

Section 213(6) requires a landlord to give prescribed information about the deposit protection to the tenant (and any relevant person such as the person who paid the deposit on behalf of the tenant) in a prescribed form within 30 days of having received the deposit.

Although there is no prescribed form, The Housing (Tenancy Deposits) (Prescribed Information) Order SI 2007/797 sets out the following information to include:

  1. Details of the tenancy deposit scheme used
  2. Information on how the tenancy deposit scheme operates
  3. Procedures about the repayment of the deposit including dispute resolution
  4. Information relating to the tenancy and to any provision under which the deposit may be withheld
  5. Certification by the landlord, including having given the tenant an opportunity to sign the prescribed information document.

 

  1. Six Months Moratorium

Section 21(5)(a) of the Housing Act 1988 sets out that asection 21 order for possession may not be made so as to take effect earlier than 6 months after the beginning of a tenancy.

A mandatory order for possession can be obtained after the initial 6 months of the tenancy for a periodic tenancy or if the fixed term was the first 6 months. Alternatively if the tenancy is for a fixed term exceeding the initial 6 months, then a section 21 notice may be served to coincide with the end of (or after) the fixed term tenancy.

For tenancies granted after 1stOctober 2015 notice cannot be served within the first 4 months and has to give at least 2 months’ notice period.

  1. Houses in Multiple Occupation/ Unlicensed Premises

Part 2 of the Housing Act 2004 requires a landlord of certain ‘Houses in Multiple Occupation’ to obtain a licence from the local authority.

Section 75 and section 98 of the Housing Act 2004 sets out that asection 21 notice is not valid when served in relation to an AST granted by a landlord who is unlicensed when required to be so.

  1. Retaliatory Evictions

Section 33(1) of the Deregulation Act 2015 provides that –

  1. Asection 21 notice cannot be served within 6months of service of a ‘relevant notice’ on the landlord
  2. A ‘relevant notice’ is a notice served by a local authority under the Housing Act 2004 pertaining to:
    1. Section 11 for improvements notices relating to category 1 hazards
    2. Section 12 for improvement notices relating to category 2 hazards or
    3. Section 40(7) for emergency remedial action

Section33 (2) provides that a section 21 notice is invalid where –

  1. The tenant complains in writing to the landlord about disrepair before a section 21 notice is given
  2. The landlord fails to respond properly to the tenant within 14 days
  3. The tenant complains to the local authority
  4. The local authority serve a ‘relevant notice’ on the landlord
  5. The section 21 notice was given before the service of the ‘relevant notice’