What you need to know about Section 21 in England
From 1 October 2018 all landlords in England with assured shorthold tenancies (ASTs) need to comply with the requirements of the Deregulation Act 2015, regardless of when the tenancies began.
The provisions in the Act have a direct impact on landlords’ ability to issue a valid Section 21 notice to end a tenancy. The Government is proposing abolishing S21, but they’ve previously brought in restrictions to its use in England. A Section 21 notice is often the first step in seeking to evict a tenant so it’s vital landlords are aware of the changes.
Here’s what you need to know…
1. Prescribed information issued at the beginning of a tenancy
Specific documents, known as ‘prescribed information’, must be issued to tenants at the beginning of a new tenancy (including new fixed terms or statutory periodic tenancies). These are:
- The Government’s How to Rent guide (only required for tenancies agreed from 1 October 2015 – but we recommend issuing this to all tenants to ensure they know their rights and responsibilities)
- A valid Gas Safety certificate (Landlord’s Gas Safety Record)
- A valid Energy Performance Certificate (EPC), where an EPC is required.
It’s best practice to ensure you have confirmation from your tenant that they have received the documents – for example, by providing a dated signature or emailing an acknowledgement. This will ensure you have evidence if the notice is challenge in court.
If a landlord fails to issue these documents to a tenant at the beginning of the tenancy, they are advised to make sure tenants receive a copy as soon as possible, and before any Section 21 notice is served. However, landlords should note that recent case law suggests that failure to issue a Gas Safety certificate cannot be remedied at a later date. If you haven’t issued the required prescribed information, or do not have evidence that you have done so, NLA members can contact our Advice Line on 020 7840 8939 for support.
Landlords should also make sure they have correctly protected any security deposit taken within 30 days of receipt, and issued the deposit protection certificate and prescribed information to tenants, in line with the regulations. Failure to do so can also invalidate a Section 21 notice.
Any landlords whose properties are licensable – either as an HMO or under selective licensing – should also remember that they can only issue a Section 21 if they hold or have applied for a licence for their property.
2. When you can serve a Section 21 notice
The Deregulation Act prevents landlords from serving a Section 21 notice in the first four months of a tenancy. Section 21 notices are now also only valid for six months.
Landlords must give tenants at least two months’ notice when serving a Section 21. However, the expiry of the notice no longer needs to fall at the end of a rental period – and so this can be two calendar months from the date the notice is received.
You can only use a Section 21 notice to end a tenancy at the end of an agreed fixed term, unless there is a break clause in the tenancy agreement, or during a periodic tenancy (which does not have a specified end date). If you want to end a tenancy during a fixed term, you must use Section 8.
3. How to issue a Section 21 notice (Form 6a)
There is now a specific notice – Form 6a – which landlords in England must use to issue a Section 21 notice, if the AST began on or after 1 October 2015.
If the tenancy began before this date, Form 6a can be used, but is not required. Notices for both pre- and post-1 October 2015 tenancies are available on NLA Forms. NLA members should contact our Advice Line on 020 7840 8939 if they are unsure about their options.
It’s best to serve notice in person at the property, and to take a witness with you who is able to sign a statement of truth to confirm notice was served. You can also serve notice by post, and we recommend using first class post and getting a certificate of posting, rather than recorded or registered delivery, which a tenant can refuse.
4. Protection from retaliatory eviction
The Deregulation Act provides additional protections for tenants from so-called retaliatory evictions. This means that, if the tenant has made a valid complaint about serious disrepair or poor conditions that the landlord has not responded to, the landlord cannot validly serve a Section 21 notice for six months.
There is a specific process which must be followed:
Step 1 – the tenant must make a complaint to the landlord in writing in the first instance.
Step 2 – the landlord either carries out a satisfactory repair within a reasonable time, or must respond to the tenant within 14 days, outlining how they will fix the problem and how long it will take. If the landlord carries out the repair within the specified timeframe, the issue is resolved.
Step 3 – if the landlord does not respond within 14 days, does not give an adequate response, or issues a Section 21 notice, the tenant can approach their local authority to request an inspection to confirm the need for a repair.
Step 4 – if the local authority inspects the property and finds it needs repair, they can issue an Improvement Notice or a Notice of Emergency Remedial Action. Protection from retaliatory eviction then applies and the landlord cannot use a Section 21 notice for six months. Any Section 21 notice issued after the initial complaint will also be invalid.
If the tenant has not made the initial complaint to the landlord, and the local authority issues an Improvement Notice or a Notice of Emergency Remedial Action, the landlord is prevented from issuing a Section 21 notice for six months, but any notice served previously remains valid.
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