Section 21 – the New Pre-Conditions

by Tessa Shepperson

7:00 AM, 30th August 2017
About A year ago

Section 21 – the New Pre-Conditions

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Section 21 – the New Pre-Conditions

This is the fourth post in my 2017 Legal Update series.

In my last post I gave you the good news about section 21 – the fact that the dreaded ‘last day of a period of the tenancy’ is (in most cases) no longer needed.

However, that problem has been replaced by others! Meaning that many section 21 notices are still not accepted by the Court. This though is now more often due to the fact that the Landlord has not complied with the various pre-conditions for service of a section 21.

This is because the Government is now making the use of section 21 conditional upon landlords complying with their various obligations. All of the pre-conditions are things you are supposed to do anyway. But now if you don’t do them – you won’t be able to serve a valid section 21 notice.

Let’s look first at the older pre-conditions.

Deposits.

This is the pre-condition which causes problems for the most landlords. You must have both protected the deposit AND served the prescribed information within the 30-day deadline.

I’m not going to go into any detail as I discussed deposits in a previous post. Suffice it to say that in most cases, you will have to refund the deposit money to the tenant before you can serve a valid section 21 notice.

If you are in this situation, you may find my Legal Kit – the Deposit Error Repair Kit’ helpful.

HMOs

If you own or manage an HMO which requires a license but has not got one – you cannot serve a valid section 21 notice.

However contrary to what you may have been advised elsewhere, you CAN serve a valid section 21 notice if you have applied for a license, while the application is being processed – even if that license application is subsequently refused (once it is refused you won’t be able to serve your notice – unless maybe you make a second application).

The other alternative is to get a Temporary Exemption Notice (known as a TEN).

The rest of the pre-conditions come under the Deregulation Act 2015 and only apply to properties in England (Wales is developing its own rules, which are mostly not yet in force).

Compliance with prescribed legal requirements (England only)

The reasoning behind this is that landlords need to be compliant with their legal obligations before they can evict tenants under the ‘no fault’ section 21 procedure.

There are two ‘prescribed legal requirements’ so far – although there is power for the Secretary of State to add more. The requirements are:

  • Service of the current Gas Safety Certificate, and
  • Service of a current EPC certificate

These are supposed to be served at the start of the tenancy, but it is acceptable if they are served later – provided they are served before your section 21 notice.

There is an interesting question mark over EPCs for HMO properties which are let by the room. These normally do not require an EPC – is this the same under these regulations?

The answer is that until there is some case law on the point, we don’t know. Until that time – it’s best to serve it. I discussed this in some detail in my blog post here.

Prescribed Information (England only)

The use of the words ‘Prescribed Information’ is perhaps unfortunate as this is NOT the same as the deposit prescribed information. In this case it means the governments How to Rent booklet.

This is only available online and it is important to check the site from time to time as it is regularly updated and you need to be sure that you are serving the correct version.

If the booklet has been updated between when you served it originally and the renewal of the tenancy – you need to serve the updated version at that time.

But if you forget, its OK to serve it late so long as this is before you serve your section 21 notice.

Conclusion

So, to summarise. To be able to serve a valid section 21 notice:

  • You MUST have complied with the deposit rules within the time limit or (in most cases) you will need to refund the deposit money before serving your notice
  • You must also have an HMO license if your property requires one – but can serve your notice if you have applied for one (while your application is being processed) or if you have a TEN
  • You must have served first the Gas Safety Certificate and a valid EPC (England only) and
  • You must have served the governments How to Rent Booklet (England only).

Landlords in Wales – keep an eye out as new rules will be coming in for you over the next few years.

Landlords in England – the government may add to the list of pre-requisites so (again) make sure you keep up to date.

Further information:

There is a lot of information about all this on my Landlord Law Blog.

My Landlord Law membership site has a lot of guidance on section 21 including a guide which you can follow to check that you have complied with all the rules.

Members can also ask me ‘quick questions’ in the members forum area.

You can find out more about Landlord Law here

Next time we will wrap up on the section 21 rules.

Tessa Shepperson is a specialist landlord & tenant lawyer and runs the popular Landlord Law online information service.

To see all the articles in my series please Click Here

Additional course below:

Landlords – if you want to avoid legal problems, penalties and fines, this online course is just the job Please Click Here



Comments

Dr Rosalind Beck

9:13 AM, 30th August 2017
About A year ago

Thanks to Tessa for such a clear article.

toona rama

17:54 PM, 30th August 2017
About A year ago

Thank you. Excellent articles.

Mike

10:41 AM, 28th August 2018
About 4 months ago

Thank you Tessa, I must have missed this article a year ago, because I usually take in new tenants on the word and recommendation of my previous or current tenants in my HMO, through their introduction, as most of them are either friends , acquaintances , or distant relatives, I prefer this arrangement because there is more harmony in a house when each tenant knows the other, so having said that, only passport and immigration status is checked , copies taken upfront, but I do not do credit check, or other criminal record or CCJ, I don't take deposit because afterwards it is a lot of headache for the sake of one month's rent.
Apart from getting them to sign a new AST agreement, and taking a payment of advance monthly rent, keys are handed to them, but I never gave them any of the prescribed information i.e. How to rent booklet, EPC, gas safety Record, Property License, however as I rent an HMO, I usually keep all these documents in a common place (Kitchen drawer near boiler) for all tenants to see, where other instruction booklets for washing machine and other appliances like the oven are also kept there for anyone to read.
But soon after the 2015 deregulation, I was brought to a wrong understanding that it would not be possible for me to serve a S21 Notice because I had not given any of my tenants these prescribed instructions at the beginning of their tenancy! (for those who came after October 2015)
I asked a few lawyers yet they were not able to advise me what my options were, all they told me was that I will have to issue new ASTs and wait another 4 months before I could serve S21 Notice thus making a total of 6 more months delay before I could serve S21, and before filing a court application.
Problem with this was, those tenants who started to behave badly or started to fall behind on paying me rent on time, but never actually owed more than 2 months rent, so that i could take S8 route, they would not sign a new AST, and I assumed I was stuck forever with these tenants!
So I was just checking on the Government's website regarding serving S21, and it clearly stated that if these prescribed instructions were not given at the beginning as they recommend, then they must be given at any time after but definitely before serving S21 notice, so now all my tenants have been given these and I had them sign for receiving these. They cannot now deny not having received these if I were to serve a S21 notice.


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