Restrictions on use of section 21 for assured shorthold tenancies

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

This content applies to England

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 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

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] Check licensing requirements for HMOs and selective licensing for privately rented homes.

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]

The government has issued a guidance on retaliatory eviction and the Deregulation Act which describes measures protecting tenants from eviction when they raise a complaint about the condition of their home.

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

Local authority has duties 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 their 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 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 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 their tenancy or of the common parts that the tenant is entitled to use

Exemptions

A section 21 notice is not 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

A landlord cannot serve a valid section 21 notice where they have failed to provide the tenant with a copy of a current:[17]

  • energy performance certificate (EPC)

  • gas safety certificate (when required)

The Court of Appeal has held that this requirement applies only to ASTs granted or renewed on or after 1 October 2015, because no regulations have been made by the Secretary of State to extend it to all ASTs after 1 October 2018.[18]

There is no timescale for the landlord to provide the gas safety certificate. The 28-day time limit imposed by the gas safety regulations does not apply to compliance with the prescribed legal requirements for the service of a section 21 notice.[19]

Where the landlord carries out a gas safety check but fails to provide the tenant with a copy of the certificate before the tenant takes up occupation, the landlord can remedy it by providing it later.[20]

It is unclear whether failure to provide an EPC when granting an AST of an individual room within a house in multiple occupation (HMO) will invalidate a section 21 notice. In a non-binding case, it was held that a landlord who rented out individual en-suite rooms in a HMO was not required to provide an EPC certificate for each room.[21]

Failure to provide prescribed information

The legislation makes it clear that this restriction applies only to ASTs granted (or renewed) on or after 1 October 2015.[22] It does not apply where the landlord is a private registered provider of social housing.[23]

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 they are content to accept service of notices and other documents by email.[24]

A landlord is not required to provide a further copy to a tenant if the:[25]

  • 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).

Breach of Tenant Fees Act 2019

A landlord in the private rented sector cannot serve a section 21 notice to end an AST if they have charged a prohibited payment or have unlawfully retained a holding deposit.[26]

A section 21 notice is invalid unless the money is either:

  • repaid before the notice is served

  • credited towards the tenant's rent or tenancy deposit

The person who has paid the fee has to give their consent for the money to be credited towards the tenant's rent or tenancy deposit.

From 1 June 2020 the prohibited payment rules apply to all ASTs irrespective of their start date.[27] Between 1 June 2019 and 31 May 2020 the prohibition applied only to tenancies that started or were renewed on or after 1 June 2019.[28]

Flowchart for advising people facing section 21 proceedings

For a summary of the restrictions see also the flowchart Advising people facing section 21 possession proceedings in England.

Last updated: 24 June 2021

Footnotes

  • [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]

    ss.21A and 21B Housing Act 1988, as inserted by ss.38 and 39 Deregulation Act 2015; reg 2 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646.

  • [18]

    Minister v Hathaway [2021] EWCA Civ 936, see also regs 1(3)-(4) 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]

    Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760.

  • [21]

    Home Group Ltd v Henry. County Court at Newcastle. 21 May 2018 (reported on Nearly Legal).

  • [22]

    s.41(3) Deregulation Act 2015; regs 1(3)-(4) Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646.

  • [23]

    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.

  • [24]

    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.

  • [25]

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

  • [26]

    s.17 Tenant Fees Act 2019.

  • [27]

    s.30 Tenant Fees Act 2019.

  • [28]

    ss.1 and 2 Tenant Fees Act 2019.