This article was first publsihed on Practical Law's Property Blog.

Clare Anslow discusses the Housing Act 1988 section 21 notices, and the requirements that need to be satisfied for the purposes of the possession procedure.

A section 21 notice is a method of ending an assured shorthold tenancy by giving two months’ notice. The advantage of a section 21 notice over other types of notice is that a landlord does not have to give a reason for requiring possession.

What requirements must be met?

There are numerous requirements to satisfy to serve a valid section 21 notice which make it very easy for one condition to be overlooked. Although the provisions of the Deregulation Act 2015 (DA 2015) have been in place for a few years, it is only recently that the court forms have caught up with the requirements. It is possible that, up until now, landlords have not been held to proof and it is therefore useful to remind ourselves of all the steps landlords must take at commencement and throughout the lifetime of the tenancy.

For an Assured Shorthold Tenancy (AST) granted after 1 October 2015, there is now a prescribed form of section 21 notice, which is form 6A, found in Schedule 1 to the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015. For ASTs granted before 1 October 2015 there is no prescribed form of a section 21 notice, although it is open to landlords to use the 6A notice. Although pre- October 2015 ASTs do not need to comply with the requirements of the 6A notice, landlords may still wish to use the form 6A as, although more convoluted than a traditional section 21 notice, if completed properly, it will minimise the risk of a technical defence being taken at court.

Before serving a section 21 notice, it is essential that landlords have satisfied the following:

  • An Energy Performance Certificate (EPC). The wording of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (the Regulations) is somewhat ambiguous, but on my reading, a landlord must provide a valid EPC (free of charge) to the tenant before the tenancy commences. Failure to do so could be an absolute defence to a section 21 notice.
  • A Gas Safety Certificate (GSC).

    This must be provided at the commencement of the tenancy, and a valid gas safety certificate must be in place throughout the tenancy. If a landlord fails to provide a tenant with a GSC before they take up occupation, it is a defect that cannot be resolved and therefore it may be an absolute defence to a section 21 notice.

    This raises the question whether failure to serve the EPC and GSC at the outset of the tenancy can be rescued by a later certificate? If the failure cannot be remedied, then a section 21 notice cannot be relied upon and the effect would be to give the tenant full security of tenure – surely this cannot be the intention behind the Regulations? However, on a literal reading, this seems to be exactly what it says.

    Unfortunately, there are no binding decisions on this point and I expect that such a defence will continue to be raised by tenants until a case reaches the higher courts. For landlords that are already in breach of the requirements, the best course of action would be to regularise matters before serving the section 21 notice, but to anticipate this argument might be raised by the tenant – at this stage, it will be to the discretion of the District Judge.

  • A "How to Rent" booklet.

    The "How to Rent" Booklet was updated on 17 January 2018 – it is essential to make sure the right version is provided to the tenant. It is important to note that landlords are required to provide a hard copy of the booklet, or, if the tenant agrees, a PDF copy. I have experienced a lot of landlords who have sent a link to the booklet via an email; however, on reading the Regulations, it is clear that the requirement is to give a tenant a version of the booklet, not just the means to find it via a link.

  • Deposit requirements.

    The mechanisms of the deposit requirements, and the penalties for failure to comply, deserve a blog post all to themselves. For the purposes of this blog, I would remind all landlords (and tenants) to check that the deposit has been lodged in a Tenancy Deposit Scheme authorised under Part 6 of the Housing Act 2004 (HA 2004) and the prescribed information was provided to the tenant (within 30 days).

  • A no "relevant notice", section 33 of the Deregulation Act 2015.

    A section 21 notice may not be given within six months of a "relevant notice" having been served in relation to the property. A "relevant notice" is an: - improvement notice under section 11 or section 12 of the HA 2004; and - a notice under section 40(7) of HA 2004 (emergency remedial action). However, the process that would render a section 21 notice invalid is rather cumbersome. The following steps would need to be taken: - the tenant must complain in writing to the landlord about the condition of the property; - the tenant must then subsequently complain to the local housing authority about the same subject matter; - the local housing authority must have served a "relevant notice" in response; and - a section 21 notice served after the tenant's complaint to the landlord but before service of the "relevant notice."

    The purpose of these requirements is to stop landlords using the possession procedure to retaliate against a tenant making a legitimate complaint about the state of a property. However, there is nothing to stop the landlord giving a section 21 notice after the six-month time limit has expired, even if it the reason is retaliatory, and no repair works have been performed.

    In my view, although the purpose is clear and should be commended, the complicated operation does very little to prevent "retaliatory" evictions.

  • Licensing.

    If a landlord is required to license a property, due to it being in a selective licensing area or subject to houses in multiple occupations requirements, but fails to do so, then any section 21 notice will be automatically invalid.

    The majority of landlords opt to use the Accelerated Possession Procedure after the expiry of a section 21 notice. In November 2017, the N5B form was updated to include all of the information required by the DA 2015. However, if landlords opt not to use the accelerated procedure (for example, if they wish to seek a money judgment for rent arrears) then the standard claim form does not include all of the relevant information. I would therefore suggest that landlords draft bespoke particulars of claim ensuring that all of the information required by the N119 is included. Alternatively, the N119 can be modified as the circumstances require. If the claim form has already been issued, file and serve a witness statement confirming compliance with the DA 2015.

Anything else?

Finally, remember that:

  • A landlord cannot use a section 21 notice to end an AST before the expiry of the fixed term unless there is a break clause.
  • Any possession order may not take effect earlier than six months after the beginning of the (original) tenancy.
  • A section 21 notice may not be given within the period of four months beginning with the day on which the (original) tenancy began.

The sheer number of conditions for a landlord to satisfy means that there is a lot that can go wrong. Care must be taken from the commencement of the tenancy, right up to the possession hearing.