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Restrictions on use of section 21

This content applies to England

The situations where a landlord cannot use the section 21 procedure to regain possession of an assured shorthold tenancy (AST).

For a summary of the restrictions see also the flowchart 'Validity of section 21 notices' in the Downloads section of this page.

Tenancy deposit not protected

A landlord cannot serve a valid section 21 notice to end an AST when a deposit paid in relation to the tenancy has not been protected in a government-authorised scheme. In particular, a section 21 notice cannot be served while the:[1]

  • deposit was not protected within the relevant time limits
  • deposit is not currently being held in accordance with an authorised scheme
  • tenant (or any 'relevant person') has not been given all the prescribed information, or
  • deposit currently consists of property other than money.

For further details see Use of section 21 notice (Deposits section). See also the flowchart 'TDP and the validity of section 21 notices' in the Downloads section of this page.

Licensing requirements

Landlords who are required to have a licence, but who do not have one, cannot serve a valid section 21 notice unless they can show that they have applied for one.[2]

For further information see the pages on HMO licensing and Selective licensing.

Retaliatory eviction

From 1 October 2018 this restriction applies to all ASTs (unless an exemption applies); before that date, it applied only to ASTs commenced on or after 1 October 2015.[3]

Restrictions are placed on the service of a section 21 notice when either of the following two scenarios apply.

Scenario 1: invalid section 21 notice after service of relevant notice

The landlord cannot serve a valid section 21 notice during the six-month period beginning on the day:[4]

  • of service of a relevant notice by the local authority, or
  • on which any suspension of the relevant notice ended.

A relevant notice is an:[5]

  • improvement notice in relation to a category 1 or 2 hazard, or
  • emergency remedial action notice.

For further information see the page Local authority's powers and duties of enforcement for action to deal with a hazard under the Housing Health and Safety Rating System.

Scenario 2: invalid section 21 notice after tenant's complaint to landlord

A section 21 notice will also be invalid where all the following conditions apply:[6]

  • before the service of the notice, the tenant made a complaint in writing about the condition of the property, including the common parts, unless the tenant does not know the landlord's postal or email address and has failed in her/his reasonable efforts to contact the landlord. It is arguable that a text message will count as a written complaint. A complaint can be made to the landlord or landlord's agent[7]
  • the landlord failed to provide an adequate response within 14 days or issued a section 21 in response. To be adequate, the response must be in writing and set out the action to be taken and a reasonable timetable for carrying out that action
  • the tenant made a follow-up complaint to the local authority about the same, or substantially the same, issue
  • as a result of the tenant's complaint, the local authority served a relevant notice (see above) on the landlord.

Where the relevant notice has been suspended it will not invalidate a section 21 notice which has been served after the initial complaint by tenant to landlord (but where the suspension ends, the section 21 notice will become invalid - see scenario 1).[8]

Where a section 21 notice was valid when served but has become invalid by the possession hearing because the tenant has been through these steps and a relevant notice has been served, the court must strike out any proceedings for possession.[9] However, an order for possession made under section 21 must not be set aside if a relevant notice was served after the order for possession was made.[10]

Common parts

If the complaint and relevant notice concerns the common parts, the restriction on the service of a section 21 notice will only apply if the:[11]

  • landlord has a controlling interest over the common parts in question
  • conditions of the common parts affect the tenant's enjoyment of her/his tenancy or of the common parts that the tenant is entitled to use.

Exemptions

A section 21 notice will not be invalid if a relevant notice was served in error, quashed, or reversed or while a relevant notice is suspended.[12]

Further, the restrictions placed on the service of a section 21 notice in respect of retaliatory eviction do not apply when the:[13]

  • condition complained of is as a result of the tenant's behaviour
  • section 21 notice is given in relation to a property that is genuinely on the market. The exemption does not apply where the landlord wants to sell the property to an associated person, including her/his family members, business partners, or employees[14]
  • property has been repossessed by the landlord's lender (or a receiver who has been appointed by the lender to act on behalf of the landlord), the mortgage predates the tenancy, and the lender intends to sell the property with vacant possession
  • landlord is a private registered provider of social housing.

Transitional effects: pre 1 October 2015 tenancies

Before 1 October 2018 the retaliatory eviction provisions only applied to ASTs granted (or renewed) on or after 1 October 2015.[15]

From 1 October 2018, they will apply to ASTs beginning before this date and where both relevant notice and section 21 notice are served on or after 1 October 2018.[16]

However, it is not clear if the retaliatory evictions provisions apply to an AST granted before 1 October 2015 (that has not been renewed since) where under:

  • scenario 1 (above) the local authority served a relevant notice less than six months before 1 October 2018
  • scenario 2 (above) a section 21 notice was served before 1 October 2018 and local authority served a relevant notice on or after 1 October 2018 (there may be other circumstances given the steps required under scenario 2 that could invalidate a section 21 notice).

Failure to comply with prescribed legal requirements

This restriction only applies to ASTs granted (or renewed) on or after 1 October 2015. This restriction will not apply to an AST granted before 1 October 2015 that has not been renewed since unless there are further regulations.[17]

A landlord cannot serve a valid section 21 notice where s/he has failed to provide the tenant with a copy of a current:[18]

The gas safety regulations require that a copy of the gas safety certificate must be provided to an existing tenant within 28 days, however, this time-limit does not apply with respect to compliance with the prescribed legal requirements for the service of a section 21 notice.[19]

It is unclear whether a failure to provide a copy of an EPC or gas safety certificate before the start of the tenancy (which are requirements of the respective regulations governing EPCs and gas safety) will invalidate a section 21 notice. However, it has been found in two (non-binding) county court cases that failing to provide a copy of a gas safety certificate at the outset of the tenancy did invalidate a section 21 notice, even where the gas safety certificate was provided later.[20]

It is also unclear whether failure to provide an EPC when granting an AST of a individual room within a house in multiple occupation (HMO) will invalidate a section 21 notice, but this is arguable.

Failure to provide prescribed information

This restriction only applies to ASTs granted (or renewed) on or after 1 October 2015.[21] It does not apply where the landlord is a private registered provider of social housing.[22] This restriction also does not apply to an AST granted before 1 October 2015 that has not been renewed since.

A landlord who fails to provide a tenant with a copy of the current version of the government's guide How to rent: the checklist for renting in England cannot serve a valid section 21 notice. A paper copy of the guide must be provided unless the tenant has notified the landlord or agent that s/he is content to accept service of notices and other documents by email.[23]

A landlord is not required to provide a further copy to a tenant if the:[24]

  • guide is updated during the tenancy, or
  • tenancy is renewed or becomes a statutory periodic AST, unless the guide has been updated since it was originally granted to the tenant.

Check on Nearly Legal - How to rent booklet archive which version of the guide was current at a given date.

The requirement to give a tenant a current copy of the guide can be satisfied at any time before the section 21 notice is served. It is unclear if the copy to be given must be the version that was current at the time the tenancy started, or at the time it was given to the tenant (if later).

Guidance on retaliatory eviction and Deregulation Act 2015

The government has issued a guidance note explaining the new provisions about retaliatory eviction and additional requirements for landlords from 1 October 2015.

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] s.215 Housing Act 2004, as amended by s.184 Localism Act 2011; s.215A Housing Act 2004, as inserted by s. 32 Deregulation Act 2015; Charalambous and another v NG and another [2014] EWCA Civ 1604.

[2] ss.75 and 98 Housing Act 2004.

[3] s.33 Deregulation Act 2015; s.41(3) Deregulation Act 2015; Deregulation Act 2015 (Commencement No. 1 and Transitional and Saving Provisions) Order 2015 SI 2015/994.

[4] s.33(1) Deregulation Act 2015.

[5] s.33(13) Deregulation Act 2015.

[6] s.33(2)-(5) Deregulation Act 2015.

[7] s.33(12) Deregulation Act 2015.

[8] s.33(9) Deregulation Act 2015.

[9] s.33(6) Deregulation Act 2015.

[10] s.33(7) Deregulation Act 2015.

[11] s.33(10)-(11) Deregulation Act 2015.

[12] s.33(1), s.33(8)-(9) Deregulation Act 2015.

[13] s.34 Deregulation Act 2015.

[14] ss.34(3)-(5) Deregulation Act 2015 and 178 Housing Act 1996.

[15] s.41(1) Deregulation Act 2015.

[16] s.41(3) Deregulation Act 2015.

[17] s.21A Housing Act 1988 as inserted by s.38 Deregulation Act 2015 and reg 1(4) Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646

[18] s.21A Housing Act 1988, as inserted by s.38 Deregulation Act 2015; reg 2 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646.

[19] reg 2(2) Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646; reg 36(6) Gas Safety (Installation and Use) Regulations 1998 SI 1998/2451.

[20] Assured Property Services Ltd v Ooo, Edmonton CC, 30 June 2017 (Legal Action, September 2017); Caridon Property Ltd v Monty Shooltz, Central London CC, 2 February 2018 (recorded on Nearly Legal blog 11.2.18 - https://nearlylegal.co.uk/2018/02/i-can-serve-gas-safety-certificates/).

[21] s.21B Housing Act 1988 as inserted by s.39 Deregulation Act 2015 and reg 1(4) Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646

[22] s.21B Housing Act 1988, as inserted by s.39 Deregulation Act 2015; reg 3 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646.

[23] s.21B(3) Housing Act 1988, as inserted by s.39 Deregulation Act 2015; reg 3 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646.

[24] reg 3(4) Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646.

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