However, for now, Landlords can still use the section 21 notice procedure to recover possession of property at the end of a fixed term.
There are a number of pitfalls to avoid and matters to think about to ensure that
a valid notice under section 21 of the Housing Act 1988 is served.,
A landlord must comply with the following statutory requirements:
- The landlord must not be a Housing Association;
- The tenancy must have been created on or after 28 February 1987;
- The notice must be served in the prescribed form (Form 6A). An up-to-date version of the form can be found on the government website;
- The notice cannot be served within the first 4 months of the tenancy;
- The notice must not require the tenant(s) to vacate the property before the end of the term of the tenancy, except if there is a break clause within the tenancy agreement;
- The notice must give the tenant(s) at least two, but no more than six months’ notice to vacate the property;
- An appropriately obtained licence for a House of Multiple Occupancy or selective licencing must have been granted by the Council and be in place (if applicable);
- The landlord must not have been served with a notice within the last 6 months by the Council regarding the condition of the property, such as an Improvement Notice or an Emergency Remedial Notice;
- If a deposit was paid, the landlord should have protected the deposit under a recognised deposit protection scheme and provided the prescribed information (including any other guidance leaflets available) for that scheme to the tenant(s) within 30 days of receiving the deposit;
- An Energy Performance Certificate (“EPC”) must be provided to the tenant(s) at the outset of the tenancy and, if applicable, an updated EPC has to be provided during the course of the tenancy;
- If the property has gas, a Gas Safety Certificate (“GSC”) must be provided to the tenant(s) at the outset of the tenancy and, if applicable, an updated GSC should be provided during the course of the tenancy agreement;
- The landlord must have provided the tenant(s) with a government ‘How to Rent’ booklet at the outset of the tenancy;
- No prohibited fees may be charged by the landlord under the Tenant Fees Act 2019; and
- If a holding deposit was taken, this was either:
- Returned to the tenant;
- Used towards the first month’s rent; or
- Used towards the tenancy deposit.
Failure to Comply with Statutory Requirements
If the above requirements are not complied with, then the section 21 notice will not be valid, and the landlord cannot issue proceedings for possession of the property.
If proceedings are issued off the back of an invalid notice, then there can be substantial delays in obtaining possession of a property as the possession process will have to be recommenced. In certain circumstances a Landlord may have to pay a tenant’s costs for the failed proceedings as well as covering their own costs.
It is very important to keep a record (with evidence) of the service of required documents on the tenants as the court will want to see proof that the required documents have actually been received by the tenants.
Gas Safety Certificates, Tenant Deposits, Electricity Safety Standard and Prescribed Information
Landlords need to be aware that non-compliance with the regulations and law relating to these matters could lead to significant financial penalties or even amount to a criminal offence in the worst-case scenario: -
- If a valid GSC is not provided to the tenant(s) at the outset of the tenancy (or within 28 days of the tenancy beginning) and throughout the tenancy, you could be in breach of the Gas Safety (Installation and Use) Regulations 1998. This is a criminal offence which is punishable by an unlimited fine and/or 6 months imprisonment.
- If you fail to protect your tenancy deposit or provide prescribed information within 30 days of the deposit being paid, you will be in breach of the Housing Act 2004 and will be liable to pay compensation between 1 and 3 times the deposit amount to your tenant per breach, as well as having to return the deposit to the tenant
- Under the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020, it is a requirement to provide tenants with a valid Electrical Installation Condition Report (“EICR”). Whilst the absence of a EICR does not invalidate a section 21 notice, landlords can face a fine of up to £30,000 for non-compliance with the EICR Regulations.
The courts have provided guidance in relation to common issues encountered with complying with the Statutory Requirements necessary to serve a valid section 21 notice.
- Trecarrell House Ltd v Rouncefield  – A landlord’s failure to provide a GSC prior to the outset of an assured shorthold tenancy does not prevent a landlord serving a section 21 notice as long as an up-to-date GSC is served upon the tenant(s) before service of the section 21 notice.
- Byrne v Hardwood-Delagado  – A difference was noted between a situation where a landlord made a trivial error by failing to serve a GSC on a tenant at the outset of the tenancy and a landlord who has failed to obtain any safety checks to ensure their property is safe to be occupied by a tenant. It was found that the latter situation could not be remediable.
- Minister v Hathaway  – A section 21 notice would not be invalid if the landlord failed to serve an EPC. However, this only applies to assured shorthold tenancies that came into existence before the introduction of the Deregulation Act 2015 on 1 October 2015.
While bringing a residential tenancy to an end by serving a section 21 notice may seem like a simple form filling exercise, there are a number of issues which need to be considered carefully before any notice is properly drafted and served in order to ensure it is valid.
A failure to comply with the relevant Statutory Requirements could lead to delays in regaining possession of a property, financial sanctions or worse.