Retaliatory evictions & New Section 21 Notice
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The Deregulation Act 2015 (DA 2015) came into force 1st October 2015 and has introduced new rules of which some are being phased in within the next 24 months. From 1 October 2018, the rules will apply to all AST no matter when the tenancy commenced.
The DA 2015 has introduced new significant restrictions on landlord’s who may wish to serve a section 21 notice. Some rules only apply to properties in England.
Retaliatory eviction legislation under the DA 2015 DOES NOT apply to Wales.
The DA 2015 provides protection for tenants from retaliatory evictions also known as “revenge eviction”, by restricting a landlord’s right to serve a Section 21 Notice in circumstances where the tenant has reported disrepair at the premises and the landlord has failed to positively respond and or fails to provide an adequate response.
If a tenant makes a written complaint to the landlord (or the landlord’s agent) about the (disrepair) condition of a property, the landlord has 14 days to respond and to provide an adequate response. If the landlord fails to respond or serves a Section 21 Notice, the tenant can complain to their local housing authority.
The DA 2015 states that any complaint by the tenant must be in writing, DA 2015 makes it clear that the restrictions under the relevant part of the DA 2015 will still apply if the tenant does not know the landlord’s email or postal address or if the tenant has made every reasonable effort to try and notify the landlord of their complaint.
The local housing authority under the Housing Act 2004, has the duty and power to investigate certain health and safety issues within a property and compel the landlord to remedy them. Should the local housing authority consider the complaint and deem the property to be ‘hazardous’, the local housing authority may serve on the landlord an enforcement notice, requiring the landlord to deal with the hazard within a time limit.
If the local housing authority does serve a notice on the landlord the landlord then barred from serving a Section 21 notice on the tenant within six months of the date when the notice was served on the landlord or six months from the date when the operation of the notice has been suspended.
IMPORTANT NOTE: A Section 21 Notice already served on a tenant will be deemed as invalid if there were at the material time reported outstanding disrepair’s and as further punishment no further notice can be served for a further six months.
There are some limited exemptions, including:
- Where the condition of the property, or common parts, is due to a breach of the tenant’s duty to use the premises in a tenant-like manner;
- Where, at the time of the Section 21 Notice, the property is genuinely on the market for sale;
- Where the landlord is a private registered provider of social housing; or
- The premises were charged before the grant of the tenancy and the mortgagee wishes to exercise its power of sale and at the time the Section 21 notice is given requires vacant possession to exercise its power of sale.
it is important for all landlords to fully comply with there legal obligations as a landlord and deal with any reported disrepair in a timely manner. If they fail to do so they will be barred from taking legal proceedings for eviction under section 21 (as amended).
Section 21 Notices
DA 2015 has introduced a number of new rules regarding the Section 21 notice.
- The Act has introduced a new prescribed form for a Section 21 Notice (Form 6A). The prescribed form must be used when ending an AST granted on or after 1 October 2015.
- Thanks to the new prescribed section 21 notice landlords will no longer need to specify the last day of the tenancy as the date on which the tenancy will come to an end. However, the date given must still not be earlier than two months from the date on which the notice is given.
- A landlord will only be able to serve a valid Section 21 Notice once the tenant has resided in the let property for at least four months. In the case of ‘replacement tenancies’ (i.e. a new tenancy but with the same parties), the relevant period is four months from the date on which the original tenancy began.
- The Act has inserted a new Section 21A into the Housing Act 1988, under which a Section 21 Notice cannot be served until the landlord has complied with certain statutory obligations. The landlord has a statutory obligation to provide their tenants with gas safety and energy performance certificates. So, the landlord will only be able to serve a Section 21 Notice when these requirements have been complied with.
- Before serving a Section 21 Notice, the landlord must provide the tenant with certain prescribed information relating to the rights and responsibilities of the landlord and the tenant under an AST. Landlords also need to provide tenants with a copy of the Department For Communities and Local Government booklet.
- The tenant may be entitled to a rent rebate where rent has been paid in advance in respect of any period beyond when a Section 21 Notice has been served to terminate the tenancy and the tenant has vacated the property.
- Landlord’s need to remember if seeking possession under section 21 then any claim for possession must be started within six months from the date the Section 21 Notice was given. If a Section 21(4) Notice is given (in respect of statutory periodic tenancies), the landlord must make a claim for possession within four months from the date of expiry of the notice. If the landlord fails to do so, they will need to serve a new Section 21 Notice.