What makes a section 21 notice invalid

A landlord cannot use the section 21 procedure to regain possession of an assured shorthold tenancy (AST) if they serve an invalid section 21 notice.

This content applies to England

When a section 21 notice is invalid

A landlord can serve a section 21 notice to end an assured shorthold tenancy without providing a reason or ground for possession. If a landlord serves a valid notice on a tenant the court must make a possession order.

If the notice is not valid, the tenant might have a defence to possession proceedings.

A section 21 notice might be invalid if the landlord:

  • did not serve the notice correctly

  • did not follow the tenancy deposit rules

  • failed to provide an energy performance certificate (EPC) or gas safety certificate

  • failed to provide the How to Rent guide

  • does not have a licence for the property where required, or has not applied for a licence

  • took a banned fee by charging a prohibited payment or retaining a holding deposit

  • served the notice after a complaint about the property (retaliatory eviction)

Incorrect service of section 21 notice

The section 21 notice is invalid if the landlord has not served the notice correctly.

A notice might be invalid if the landlord:

  • did not use the correct form

  • did not give the right amount of notice

  • served the notice within the first four months of the tenancy

Find out more about service of a section 21 notice.

Breach of tenancy deposit rules

A landlord cannot serve a valid section 21 notice where there is a deposit paid in relation to the tenancy while the:[1]

  • deposit was not protected within the relevant time limits, usually within 30 days

  • deposit is not currently protected with an authorised scheme

  • tenant (and any relevant person) has not been given all the prescribed information

  • deposit is something other than money

A relevant person is anyone who pays the deposit on behalf of the tenant.

The tenant or relevant person can apply to the County Court for compensation if the landlord has not complied with the rules.

Failure to protect the deposit

A notice is invalid if the landlord did not protect the deposit in an authorised scheme within 30 days from receiving the deposit.[2]

A notice is invalid if the deposit is not protected with an authorised scheme when the section 21 notice is served.[3]

Tenants can contact the scheme administrators to check if their deposit is protected.

The landlord can serve a new valid notice if either:[4]

  • the deposit is returned to the tenant or relevant person in full, or subject to any deductions agreed with the tenant

  • the tenant and any relevant person made a claim for compensation for the failure to protect the deposit, and the claim has been determined by the court, withdrawn, or settled out of court between the landlord and tenant

Where a deposit was paid for a fixed term tenancy that became a statutory periodic tenancy before 6 April 2007 (and has not been renewed since) the section 21 notice can be valid if the landlord protected the deposit at any time before service.[5]

Where a landlord must return the deposit to serve a valid notice, it is arguable that the deposit is not returned until the tenant or relevant person actually receives it, so any notice served before then would be invalid.[6]

Failure to provide prescribed information

A notice is invalid if the landlord has protected the deposit within the relevant time limit but has not given the tenant and any relevant person the prescribed information.[7] It is uncertain whether the requirement for prescribed information applies when the tenancy began before 6 April 2007.

The landlord can serve a new valid notice after:[8]

  • the landlord has given the tenant or any relevant person the prescribed information

  • the deposit has been returned to the tenant or any relevant person in full, or subject to any deductions agreed with the tenant

  • the tenant or any relevant person made a claim for compensation for the failure to protect the deposit, and the claim has been determined by the court, or withdrawn, or settled out of court between the landlord and tenant

Renewal of tenancies

If the tenancy is replaced by a new tenancy (a statutory periodic tenancy or a new fixed term) while the deposit was protected in an authorised scheme, the deposit protection rules are met for the new tenancy if the:[9]

  • landlord and tenant are the same

  • premises are the same or substantially the same

  • deposit was protected during the previous tenancy

  • prescribed information was given during the previous tenancy

  • deposit with the same scheme as when the prescribed information was given

The conditions apply if there has been a further fixed term or periodic tenancy between the original and current tenancy.

If the conditions are met, the landlord is able to serve a valid section 21 notice as the deposit protection requirements are deemed to have been fulfilled in relation to the new tenancy. This applies even if the deposit was protected, or the prescribed information was served, outside of the required time limits in the original tenancy.

Change of landlord

Where there is a change of landlord during the tenancy, the new landlord may need to take action to ensure they comply with the tenancy deposit rules.

The County Court decided that where the new landlord did not provide the tenant with an updated version of the prescribed information despite having the landlord's account with the tenancy deposit protection scheme transferred to them, the section 21 notice was invalid.[10]

Failure to provide an EPC or gas safety certificate

A landlord cannot serve a valid section 21 notice where they have failed to provide the tenant with a copy of a current energy performance certificate (EPC) or gas safety certificate (where one is required).[11]

The landlord can provide the EPC or gas safety certificate at any time before service of the notice. The 28-day time limit imposed by the gas safety regulations does not apply to compliance for the service of a section 21 notice.[12]

Where a 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.[13] If the landlord has not obtained a gas safety certificate covering the start date of the tenancy, it is unclear if the landlord can rectify this by carrying out an inspection and providing the tenant with the certificate after the start of the tenancy.

The County Court held that a landlord who rented out individual en-suite rooms in a house in multiple occupation (HMO) was not required to provide an EPC certificate for each room.[14] It is uncertain whether an EPC must be given for the whole building.[15]

The Court of Appeal has held that this requirement only applies to ASTs granted or renewed on or after 1 October 2015.[16]

Failure to provide How to Rent guide

A notice is invalid if the landlord 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'. A paper copy of the guide must be provided unless the tenant has notified the landlord or agent that they accept service of notices and other documents by email.[17]

A landlord is not required to provide another copy of the guide to a tenant each time it is updated. If the tenancy is renewed with the same tenants (including where the tenancy becomes statutory periodic at the end of a fixed term), the landlord only needs to provide the guide if it has been updated in the meantime, in which case the new version must be provided.[18]

The landlord can give the tenant a copy of the current version of the guide at any time before the section 21 notice is served.

Nearly Legal has a version checker.

This requirement only applies to ASTs granted or renewed on or after 1 October 2015.[19] It does not apply where the landlord is a private registered provider of social housing.[20]

Breach of licencing requirements

A property may need to be licenced if it is a house in multiple occupation (HMO) or in an area where selective licencing applies.

A landlord cannot serve a valid section 21 notice if they require a licence for the property but do not have one. They can only serve a valid section 21 notice once they have the licence or if they can show they have applied for one.[21]

A landlord of a flat in an unlicensed house in multiple occupation (HMO) cannot serve a valid notice for as long as the HMO remains unlicensed.

A landlord can apply for a licence or a temporary exemption notice on the basis that they are planning to take steps to ensure that the property will no longer require licensing. A section 21 notice is valid if the application has not been withdrawn and the authority has either:[22]

  • not reached a decision on the application

  • decided not to grant the application, but either an appeal has been made against the decision, or the appeal period has not yet ended

Landlord takes a banned fee

A notice is invalid if the landlord has taken a banned fee or unlawfully retained a holding deposit, unless the money is either:[23]

  • repaid before the notice is served

  • credited towards the tenant's rent or tenancy deposit.

A landlord cannot charge a tenancy fee unless it is expressly permitted, such as rent or a tenancy deposit.

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

From 1 June 2020 these rules apply to all ASTs irrespective of their start date.[24] 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.[25]

Retaliatory eviction

A retaliatory eviction is when a landlord serves a section 21 notice after a tenant complains about poor conditions and the local authority serves a relevant notice.

A relevant notice is either an:[26]

  • improvement notice in relation to a category 1 or 2 hazard

  • emergency remedial action notice

A notice is not valid if either of the following two scenarios apply.

Scenario 1: invalid section 21 after service of relevant notice

The landlord cannot serve a valid notice during the six month period beginning on the day:[27]

  • of service of a relevant notice by the local authority

  • on which suspension of the relevant notice ended

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

A landlord cannot serve a valid notice where all the following steps apply.[28]

  1. Before service of the section 21 notice, the tenant made a complaint to the landlord or the landlord's agent in writing about the condition of the property, including the common parts.

  2. The landlord failed to respond in writing within 14 days giving a reasonable timetable for taking action, or issued a section 21 notice in response

  3. The tenant made a follow-up complaint to the local authority about the same, or substantially the same, issue.

  4. The landlord issued a section 21 notice to the tenant, if not already given in response to the initial complaint.

  5. As a result of the tenant's complaint, the local authority served a relevant notice on the landlord.

Steps 1 and 2 are not required when the tenant does not know the landlord's postal or email address and has made reasonable efforts to contact the landlord.[29]

A section 21 notice served after the tenant's initial complaint to the landlord can be valid where the relevant local authority notice is suspended.[30]

The court must strike out any proceedings for possession if a section 21 notice was valid when served but has become invalid by the possession hearing because the local authority has served a relevant notice.[31]

An order for possession made following a section 21 notice cannot be set aside if a relevant local authority notice was served after the order for possession was made.[32]

Common parts

If the complaint and relevant notice concern the common parts, the section 21 notice is invalid if the:[33]

  • landlord has a controlling interest over the common parts

  • 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

Common parts include communal areas such as stairwells and corridors.

Exemptions to retaliatory eviction

Retaliatory eviction protection applies to all ASTs unless an exemption applies.[34] The protection may not apply where the relevant notice and the section 21 notice were served before October 2018. [35]

A notice can be valid if a relevant notice was served in error, quashed, or reversed, or while a relevant notice is suspended.[36]

A tenant would not have protection from retaliatory eviction if the:[37]

  • condition complained of is a result of the tenant's behaviour

  • 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

  • section 21 notice is given in relation to a property that is genuinely on the market.

This does not apply where the landlord wants to sell the property to an associated person, including family members, business partners, or employees[38]

Last updated: 16 February 2022

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]

    s. 215(1A) Housing Act 2004, as amended by s.31 Deregulation Act 2015.

  • [3]

    s.215(1) Housing Act 2004, as amended by s.31 Deregulation Act 2015.

  • [4]

    s.215(2A) Housing Act 2004, as inserted by s.184 Localism Act 2011 and amended by s.31 Deregulation Act 2015.

  • [5]

    s.215(1) Housing Act 2004, as amended by s.31 Deregulation Act 2015.

  • [6]

    Chalmiston Properties Ltd v Boudia [2015] Barnet County Court (27 October 2015), reported on Nearly Legal 29 October 2015; Yeomans v Newell [2016] Canterbury County Court (25 May 2016), reported on Nearly Legal 15 June 2016.

  • [7]

    s.215(2) Housing Act 2004, as amended by s.31 Deregulation Act 2015.

  • [8]

    ss.215(2) and 215(2A) Housing Act 2004, as amended by s.31 Deregulation Act 2015.

  • [9]

    s.215B Housing Act 2004, as inserted by s.32 Deregulation Act 2015.

  • [10]

    Sebastiampillai v Parr [2019] Central London County Court (11 April 2019), reported on Nearly Legal 6 May 2019.

  • [11]

    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.

  • [12]

    reg 2(2) Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646; reg 6(6) Gas Safety (Installation and Use) Regulations 1998 SI 1998/2451; reg 6(2) The Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118.

  • [13]

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

  • [14]

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

  • [15]

    reg 6(5) The Energy Performance of Buildings (England and Wales) Regulations 2012 SI 2012/3118.

  • [16]

    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.

  • [17]

    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.

  • [18]

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

  • [19]

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

  • [20]

    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.

  • [21]

    ss.75 and 98 Housing Act 2004

  • [22]

    ss.75(2) and 73(1) Housing Act 2004; ss.72(4) and 72(8) Housing Act 2004.

  • [23]

    s.17 Tenant Fees Act 2019.

  • [24]

    s.30 Tenant Fees Act 2019.

  • [25]

    ss.1 and 2 Tenant Fees Act 2019.

  • [26]

    s.33(13) Deregulation Act 2015.

  • [27]

    s.33(1) Deregulation Act 2015.

  • [28]

    ss.33(2)-(5) Deregulation Act 2015.

  • [29]

    s.33(12) Deregulation Act 2015.

  • [30]

    s.33(9) Deregulation Act 2015.

  • [31]

    s.33(6) Deregulation Act 2015.

  • [32]

    s.33(7) Deregulation Act 2015.

  • [33]

    ss.33(10)-(11) Deregulation Act 2015.

  • [34]

    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.

  • [35]

    ss.41(1) & 41(3) Deregulation Act 2015.

  • [36]

    s.33(1) and ss.33(8)-(9) Deregulation Act 2015.

  • [37]

    s.34 Deregulation Act 2015.

  • [38]

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