It’s often the first question asked by tenants, landlords, or sometimes the nervous letting agent who served the notice: Is my section 21 notice valid?

Section 21 notices are the ‘no fault’ notices given by landlords in England who want to recover possession of a property let under an assured shorthold tenancy. It used to be relatively simple to work out whether or not one of these notices was valid. Prior to 2015 when the Deregulation Act 2015 introduced several important changes, notices had to be in writing, and they had to give the right amount of time, but there were not too many other requirements.

Deposit Protection and Licensing

Deposit protection has caused some complications. Since the Housing Act 2004 came into force, a section 21 notice could only be served if any tenancy deposit has been properly protected by the landlord.

It is easy enough to work out whether a deposit has been protected in one of the three Government-approved schemes, but protecting the deposit properly also includes providing the deposit ‘prescribed information’ to the tenant (and to any other ‘relevant person’ who paid the deposit on behalf of the tenant).

It can sometimes be very difficult to establish whether the prescribed information complies with the full legal requirements or not because very technical objections have sometimes been upheld by the courts.

Property licensing was also connected to the validity of section 21 notices by the Housing Act 2004. A landlord whose property requires an HMO licence or a ‘selective licence’ cannot serve a valid notice unless someone has either obtained a licence for the property or made a proper application for a licence or ‘temporary exemption notice’.

Even if the notice itself was prepared correctly, and there were no issues with licensing or deposit protection, there might still be a question over whether the notice had actually been served effectively on the tenants.

Section 21: Changes Introduced since 2015

Since 2015 the law on section 21 notices has become more complicated. The Deregulation Act introduced the concept of ‘retaliatory eviction’, aimed at preventing landlords from evicting their tenants rather than comply with a request to carry out repairs.

These rules are not straightforward, and they introduced a new kind of problem for landlords – a notice could in some circumstances become retrospectively invalid if the local authority carried out certain types of enforcement against the landlord before the court made a possession order against the tenant.

A notice might be valid on the day it was served but become invalid by the time the court considers the landlord’s claim for possession which relies on that notice.

In practice, retaliatory eviction has turned out to provide only minimal benefit to tenants, because most local authorities lack the resources to serve very many of the enforcement notices required to trigger its effect.

But the rules relating to ‘prescribed requirements’ introduced in 2015 are very significant: landlords must provide gas safety certificates, energy performance certificates and the ‘How to Rent guide’ in order to serve a valid section 21 notice.

These obligations have turned out to be complicated to apply in practice, because there are so many ways for something to go wrong:

  • What if the documents are provided late?
  • Does is matter if a document has subsequently expired after it was given to the tenant?
  • Have the documents actually been received by the tenants or not?
  • Does a minor technical defect ‘invalidate’ that document and hence a section 21 notice served later?

These sorts of questions tend to not be easy to answer, and the courts have only provided definitive answers on a narrow selection of them.

On top of this, the Tenant Fees Act 2019 added another form of invalidity: a landlord who has taken a ‘prohibited payment’ cannot serve a notice until they remedy that issue.

Those of us who maintain a section 21 checklist or validity flowchart might perhaps have been relieved when the Government decided not to make any link between the requirement for landlords in England carry out five-yearly electrical checks and section 21 notices.

Is your section 21 notice valid?

The first thing to realise is that this question might not have an easy answer. But on the other hand, it might! It is sometimes possible to spot an obvious mistake quite quickly – if the landlord has not used the standard form of section 21 notice (Form 6A) that is easy to spot (Although there is still some debate about the application (or not) of the requirement to use Form 6A in respect of pre-October 2015 tenancies).

You need to prepare yourself for the answer to your question being complicated, and perhaps not being definitive either way.

The second thing to think about, is who should you be asking? If you are a tenant, you can call Shelter for advice or speak to your council. Law centres, solicitors and advice agencies will be able to give more detailed advice and representation. Landlords can access helplines through membership of organisations like the NRLA or ‘Landlord Law’.

Getting advice from a solicitor about a section 21 notice is significant investment for landlords (or tenants paying privately). Quality legal analysis involves looking at all the documents which a judge would expect to see and then testing and probing the evidence to try to anticipate what the other party and their lawyers might have to say.

Giving proper advice requires digging deep and investigating beyond the notice itself.

Is it worth it for landlords to pay for advice when the tenants might just leave anyway?

When tenants defend a claim, and the landlord is facing not just delays but the threat of being ordered to pay their tenant’s costs, landlord might wish that they had taken specialist advice earlier. Every case is different and sometimes landlords cannot afford to not make every effort to get it right first time around.