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FAO Landlords: New Section 21 Procedure

Posted on 10th January, 2019

Landlords who have entered into an Assured Shorthold Tenancy (AST) can look to recover possession by serving a notice under Section 21 of the Housing Act 1988.

The 3-year transitional period under the Deregulation Act 2015 for new requirements ended on 1 October 2018. All assured shorthold tenancies are now required to follow the new Section 21 procedure.

Under the new procedure pre-conditions must now be complied with before a landlord can serve a Section 21 notice. Some of these conditions remain the same, such as the requirement to comply with the Tenancy Deposit Scheme. There are several new-preconditions including:

  • Providing an Energy Performance Certificate prior to the tenancy commencing;
  • Providing a Gas Safety Certificate at the commencement of the tenancy and ensuring there is a valid certificate in place throughout;
  • Supplying a copy of the ‘How to Rent’ booklet. There is no requirement to supply further copies of the booklet each time a new one is published, although in the event a tenancy is renewed and there is a more up to date version than previously provided, it must be provided.

In addition to the landlord having to comply with all pre-conditions there is now a requirement that once a Section 21 notice is issued, it must be actioned within six months of its date of service.

Retaliatory eviction provisions now apply to all ASTs. If a formal improvement notice or emergency remedial notice is served under the Housing Health and Safety Rating System, a landlord is prevented from serving a Section 21 notice for a period of 6 months.

Potential Issues

Following the end of the 3-year transitional period potential issues have arisen regarding the new procedure.

The Regulations state that a notice may not be given when a landlord is in breach of a prescribed agreement (a pre-condition). Therefore, for example, if a landlord fails to provide a tenant with an EPC prior to the tenancy commencing the tenant may have an absolute defence to a Section 21 notice.

Over the transitional period there have already been 2 County Court decisions in relation to the Gas Safety Certificate pre-condition; Assured Property Services v Ooo ruled that a Section 21 can be invalid due to the late service of the Gas Safety Certificate and Caridon Property Ltd v Monty Shooltz highlighted that it is not possible to remedy a breach by serving the Certificate at a later date.

As these are County Court decisions they are not binding precedent, although it is likely to be viewed that they are applicable to all pre-conditions. As a result, it is vital landlords comply with the time requirements.

Should you require any assistance in relation to the procedure under section 21, please do not hesitate to contact a member of our Dispute Resolution Team.

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