How to end an Assured Shorthold Tenancy by serving a Section 21 Notice on a Tenant
16 November 2021
Since the start of the Covid-19 pandemic there have been lots of changes to the notice periods which a landlord of a residential property has to give a tenant to recover possession of the property. Understandably, it has caused a great deal of confusion. This note concentrates on the position in England and since 1 October 2021 and is correct as at the date of publication in relation to properties let on an Assured Shorthold Tenancy (“AST”).
Section 21 of the Housing Act 1988 (“the HA”) allows a landlord to serve notice upon a tenant of a residential property to recover possession provided that certain conditions and legal criteria are met.
The landlord must use a proforma document, namely Form 6A, which is published by the Department for Levelling up, Housing and Communities or use a letter which contains all of the prescribed information. A minimum of 2 months’ notice must be given to the tenant to leave the property.
A Section 21 Notice is regarded as a “no fault” eviction. In other words, the landlord does not have to prove that the tenant is in breach of the tenancy agreement to obtain possession of the property. The crucial point is that the landlord has followed the correct procedure and that all the legal requirements have been complied with.
If the tenant does not leave the property once the 2 months’ notice has passed, a landlord cannot evict the tenant without a court order. It is illegal to evict a tenant from a residential property in the absence of a court order because of the provisions of the Protection from Eviction Act 1977.
The court has discretion whether to grant a possession order and may do so only if it is satisfied that it is reasonable to order possession be given to the landlord based upon the evidence presented by the landlord, and that all legal requirements have been satisfied. Therefore, the burden rests with the landlord to show that they have complied with the law and persuade the court to allow them to recover possession of the property.
- What are the legal requirements that a landlord must comply with?
There is a lot of legislation which a landlord is obliged to consider and comply with when renting their property out to a tenant. Below, we shall explain specifically which legislation a landlord has to ensure they comply with to ensure that the Section 21 Notice is valid when it is served.
The Deregulation Act 2015 (“the DA”)
The DA brought in rules for the way a tenancy can be ended by a landlord.
- The DA protects tenants from retaliatory eviction where they have raised a legitimate complaint about the condition of the property. Once the tenant notifies the landlord of their complaint, the landlord has time within which to respond and address the complaint and, remedy the disrepair to the property.
- If the tenant refers the matter to the local housing authority and the housing authority subsequently serves a notice on the landlord in relation to health and safety conditions to be rectified, this means that the landlord cannot serve a Section 21 Notice until these issues are remedied.
- A Section 21 Notice cannot be served within the first 4 months of the tenancy starting.
- The prescribed form of Section 21 Notice, Form 6A, must be used to bring the tenancy to an end.
- A Section 21 Notice cannot be served unless the landlord has obtained (and given to the tenant) a copy of the annual Gas Safety Certificate and the most up to date Energy Performance Certificate (“the EPC”).
- At the start of the tenancy, the landlord must provide the tenant with information relating to the responsibilities of the landlord and tenant under a tenancy agreement as contained in the “How to rent: The checklist for renting in England”.
If the landlord has not complied with the above requirements, then it means that a Section 21 Notice cannot be given by the landlord. This is specifically stated in section 38 of the DA.
The Tenant Fees Act 2019 (“the TFA”)
The TFA contains rules relating to tenancies that were entered into by a landlord and a tenant after 1 June 2019. Amongst other matters, the TFA:
- Prohibits all payments in connection with a tenancy except payments that are expressly permitted. The payments that are permitted are described within Schedule 1 of the TFA.
- Bans most letting fees and it also caps tenancy deposits that a tenant pays.
- Sets out that a landlord or their letting agent is prohibited from requiring tenants to make a payment as a deposit which exceeds 5 weeks’ rent where the annual rent is less than £50,000 or 6 weeks’ rent where the annual rent is more than £50,000.
- States that a holding deposit to secure a property is capped at 1 weeks’ rent.
Where a landlord is in breach of any of the above provisions, the landlord will be unable to serve a Section 21 Notice. If the landlord attempts to do so, then the Section 21 Notice will be deemed invalid.
The Housing Act 2004 (“HA 2004”)
Since 6 April 2007 by the provisions of the HA 2004, it has been mandatory for a landlord to join a Tenancy Deposit Scheme (“TDS”) upon entering a new tenancy where a deposit is paid by the tenant at the start of the tenancy. The landlord must comply with the requirements of the TDS and give prescribed information to the tenant
Within 30 days of receiving the deposit from the tenant, the landlord must tell the tenant:
- The address of the rented property
- The amount of deposit paid
- How the deposit is protected
- The name and contact details of the TDS
- The landlord / or the letting agency’s name and contact details
- The reasons why the landlord would keep some or all the deposit
- How to apply to get the deposit back
- What to do if the tenant cannot get hold of the landlord at the end of the tenancy
- What to do if there is a dispute over the deposit
If the landlord fails to protect the deposit in the TDS and provide information to the tenant, the landlord cannot serve a Section 21 Notice.
The DRR create some protections for individuals who have obtained a breathing space moratorium or mental health crisis moratorium. Once the protections are in place, it restricts a creditor’s ability to take enforcement action in relation to a moratorium debt during the moratorium.
A moratorium debt is any qualifying debt owed by an individual at the time they apply for the moratorium, the details of which they have given to the Insolvency Service. Qualifying debts include arrears of rent and other sums due to a landlord under a lease.
A landlord is likely to encounter the DRR if one of their tenants has financial problems and has obtained a moratorium. The Insolvency Service maintains a register of individuals who have obtained a moratorium and will notify all the creditors that the moratorium has started.
A Breathing Space Moratorium protects an individual from enforcement action by a creditor in relation to a moratorium debt for up to 60 days or until the moratorium is cancelled.
A Mental Health Moratorium Crisis is available to a person who is receiving mental health crisis treatment. It lasts until 30 days after the person stops receiving mental health crisis treatment or the moratorium is cancelled.
If a tenant has obtained a moratorium, this does not stop a landlord from serving a Section 21 Notice on the tenant and then commencing possession proceedings. However, if the landlord intends to also include a claim for rent arrears regarding a moratorium debt, then it may be the case that the DRR prohibit the enforcement of any order that may be granted by the court for rental arrears.
The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 (the “ESSR”)
The ESSR came into force on 1 June 2020 and require landlords to ensure that the fixed electrical installations in their properties are safe. The national standards for electrical safety must be met. These are currently set out in the 18th edition of the Wiring Regulations published as British Standard 7671.
Landlords are obliged to:
- Ensure the electrical installations are inspection and tested by a qualified person at least once every 5 years.
- Obtain a report from the person conducting the inspection and test which provides the
results and sets a date for the next inspection and test.
- Supply a copy of the report to the existing tenant within 28 days of the inspection and test.
- Supply a copy of the report to a new tenant before they occupy the property.
- Where the report says that repair work or further investigations are necessary, the work must be completed within 28 days or sooner if specified in the report.
- Supply to the tenant and the local authority written confirmation of the completion of
the repair works from the electrician within 28 days of completion.
Section 38 of the DA stipulates that where a landlord is in breach of a prescribed requirement, then a Section 21 Notice may not be given. The “prescribed requirements” are requirements imposed on landlords by any law which relate to:
- The condition of the property (or the common parts)
- The health and safety of occupiers of the property
- The energy performance of the house.
There is an argument that the ESSR is a piece of legislation that relates to the health and safety of a tenant as occupier of the property, therefore, should a landlord fail to comply with the requirements, then there is a risk that the court will decide that any Section 21 Notice served upon the tenant is invalid and will not grant possession of the property back to the landlord.
- Obtaining a possession order from the court
If, once the Section 21 Notice has been served, the tenant does not leave the property at the end of the 2-month notice period, then the landlord must issue possession proceedings to obtain a court order to evict the tenant. This action must be taken within 6 months of the date the Section 21 Notice was served.
The court has complete discretion in the context of a landlord seeking possession based upon a Section 21 Notice which means that it may grant an order for possession. There are no mandatory grounds.
A possession order will only be granted if the court is satisfied that the tenancy was ended correctly by the appropriate Section 21 Notice and that the landlord has complied with all legal requirements as discussed in this note.
If the court is willing to grant the possession order, they will usually order that possession be given to the landlord within 14 days. However, the court has power under the HA to postpone the possession order for a maximum of 14 days or, where the tenant can show exceptional hardship, up to 6 weeks.
If the court is not satisfied that the landlord has complied with all legal requirements or there has been a breach of any law, then the court will not grant the possession order, it is likely that the proceedings will be dismissed, and the landlord may be required to pay the tenants’ legal costs of the proceedings.
In view of the risks facing landlords, it is imperative to ensure their house is in order before taking steps to service a Section 21 Notice.
- How to ensure that the Section 21 Notice will be valid before serving
it
Before serving the Section 21 Notice, a landlord should run through the checklist below to ensure that they have complied with all legal requirements and obligations.
The Checklist
- Was the tenant given a copy of the “How to rent guide” at the start of the tenancy?
- Has the deposit been placed into a TDS and the information given to the tenant within 30 days?
- Has the tenant been given a copy of the Energy Performance Certificate?
- Has a copy of the latest Gas Safety Certificate been given to the tenant and was it provided within the relevant timescales of the tenancy starting?
- Has the Electrical Safety Report (and, where appropriate the subsequent confirmation of completion of repair works) been provided to the tenant?
- Has the tenant made any complaints about disrepair? If so, have they been addressed? Has any referral been made to the local authority?
- Has the tenant obtained a Breathing Space Moratorium or a Mental Health Crisis Moratorium.
- Conclusion
If the landlord discovers that they are in breach of legislation then, they should take steps to remedy the position immediately. However, whether it is possible to remedy the breach and then proceed to serve the Section 21 Notice immediately depends upon the nature of the breach. It is recommended that legal advice should be sought in these circumstances.
Care should be taken when drafting and serving a Section 21 Notice upon a tenant because of the risks that the notice is invalid and that a possession order will not be granted by the court.
If you have any questions or need any help, please do get in touch with our dispute resolution expert, Kelly Ellery.
