Constraints to landlords of assured shorthold tenancies being able to obtain possession under a Section 21 Notice
There are five essential restrictions placed upon a landlord of an assured shorthold tenancy (AST) preventing him from relying upon a Section 21 possession notice:
- Six months moratorium
- Tenancy deposits
- Houses in Multiple Occupation/ Unlicensed Premises
- Retaliatory Evictions
- Prescribed Information
SIX MONTHS MORATORIUM
Section 21(5)(a) of the Housing Act 1988 sets out that a Section 21 order for possession may not be made so as to take effect earlier than 6 months after the beginning of a tenancy.
For tenancies granted after 1st October 2015 notice cannot be served within the first 4 months and has to give at least 2 months’ notice period
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:
- Protect any tenancy deposit held by the landlord in an authorised tenancy deposit scheme,
- Comply with the initial requirements of such a scheme and
- Provide the prescribe information of the scheme to the tenant.
THE INITIAL REQUIREMENTS
Section 213(3) requires a landlord to comply with the ‘initial requirements of the authorised scheme within 30 days of having received the deposit. The essential requirement is to protect the deposit in a scheme.
Section 213(5)-(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:
- Details of the tenancy deposit scheme used
- Information on how the tenancy deposit scheme operates
- Procedures about the repayment of the deposit including dispute resolution
- Information relating to the tenancy and to any provision under which the deposit may be withheld
- Certification by the landlord, including having given the tenant an opportunity to sign the prescribed information document.
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 a Section 21 notice is not valid when served in relation to an AST granted by a landlord who is unlicensed when required to be so.
Section 73 and Section 96 of the Housing Act 2004 further confirms a tenant may seek a rental repayment order for rent paid to the landlord, for a period of up to one year’s rent, when the premises are unlicensed,.
Section 33(1) of the Deregulation Act 2015 provides that –
- No Section 21 notice can be given within 6months of service of a ‘relevant notice’ on the landlord
- A ‘relevant notice’ is a notice served by a local authority under the Housing Act 2004 pertaining to:
- Section 11 for improvements notices relating to category 1 hazards
- Section 12 for improvement notices relating to category 2 hazards or
- Section 40(7) for emergency remedial action
Section33 (2) provides that a Section 21 notice is invalid where –
- The tenant complains in writing to the landlord about disrepair before a Section 21 notice is given
- The landlord fails to respond properly to the tenant within 14 days
- The tenant complains to the local authority
- The local authority serve a ‘relevant notice’ on the landlord
- The Section 21 notice was given before the service of the ‘relevant notice’
|‘Under no circumstances can the landlord forcefully evict you from the property. Section 21 only grants an authority to seek possession from the court. Only the county bailiffs can physically remove you from your home.|
Section 21A of the Housing Act 1988 sets out that no Section 21 notice may 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:
- Regulation 2(a): An Energy Performance Certificate (EPC)
- Regulation 2(b): Gas Safety Certificates (annually)
- 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.
FIND OUT IF YOUR DEPOSIT HAS BEEN SECURED
If you are a tenant of an AST simply call the three authorised agencies below to confirm that your private landlord has secured your tenancy deposit, as he is legally required to do.
- The Deposit Protection Service – 0330 303 0030
- My Deposits – 0344 980 0290
- Tenancy Deposit Scheme – 0300 037 1000