What is a Section 21 Notice?
A Section 21 (Housing Act 1988) Notice is the first step a landlord would take to gain back possession of a property. It is a written notice to terminate an Assured Shorthold Tenancy on a ‘no fault’ basis (without providing a reason for wishing to take possession).
There are new requirements under the Tenant Fees Act 2019 which can be seen in recent post about legal guidance for landlords and tenants on the Tenant Fees Act 2019.
In line with this the Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2019 has now introduced a new corresponding Section 21 Notice form 6a to be used from 1 June 2019.
Since the Deregulation Act 2015 and Assure Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 the standard form 6A is required for all new tenancies entered into from 1 October 2015, and all tenancies from 1 October 2018.
Restrictions on serving a Section 21 Notice
Before a landlord can even get as far as serving a Section 21 Notices, s/he must have complied with certain legal requirements for all tenancies entered into since 2015, including for example provision of:
- An Energy Performance Certificate
- The ‘How to Rent’ Guide
- Prescribed Information on the protection of a deposit (having also protected that deposit)
A landlord is also required to provide a valid gas safety certificate, not only before a Section 21 Notice, but before occupation. This was confirmed in the recent case of Caridon Property Limited v Shooltz (2018). So if a landlord has not provided a gas safety record at the start of the tenancy, he will not be able to rely on the no fault basis for termination ever (during that particular tenancy) and will have to rely on another ground for possession (such as rent arrears, where the process is longer and therefore more costly).
A Section 21 Notice cannot be served within the first 4 months of a tenancy and will also expire after 6 months of service (or 4 months for periodic tenancies where the period of the tenancy is greater than 2 months).
What is different in the new Section 21 Notice?
The new 6a forms will include:
- Prohibition of service of a Section 21 Notice if an unlawful fee has been taken
- Explanation of the invalidity of the Section 21 Notice where the landlord has not applied for a HMO/selective licence (if so required)
- Information on the homelessness support service available to tenants
A new updated ‘How to Rent’ Guide should also be used for all tenancies from 1 June 2019.
What does the future hold for Section 21 Notices?
The government is proposing and seeking consultation on whether the ‘no fault’ basis for obtaining possession of assured shorthold tenancies should be abolished altogether. They consider this is required to provide more secure accommodation for the vulnerable tenants in England given that 4.5 million people in England are in private rentals. This would follow suit of Scotland where assured shortholds tenancies and section 21 notices have been no longer since December 2017. Landlords will obviously be concerned about the necessity of going this far given the increasing protection afforded to tenants in recent years and the diminishing ability to actually utilise Section 21 Notices.
COVID-19 and its impact on Section 21
In the current climate, many are fearful of losing their jobs and potentially their homes given the inability to keep up rental payments.
The Coronavirus Bill will amend the time limit that a Section 21 notice must provide from 2 months to 3 months (with the ability for this to be extended to 6 months). This will apply from the commencement date until 30 September 2020. This is not quite the ‘evictions ban’ promised by the government.
The problem is that this does not apply retrospectively, so if a Section 21 notice has already been served, it will still be valid and landlord could still potentially obtain possession even as a result of COVID-19 related issues. Although at the moment, the situation is not clear on how soon these possession cases would be heard given that many courts are adjourning off non-urgent hearings.
Whether you are a tenant concerned about losing your home, or a landlord concerned about meeting mortgage payments, we hope that all parties involved can take a compassionate view and work together in these difficult times.
Throughout the Coronavirus pandemic, Hodge Jones & Allen will continue to provide advice and services for those in need of legal assistance. Get in touch with us today on 0808 252 5231.