Serving a Section 21 on tenant while house is uninhabitable

by Readers Question

10:09 AM, 21st November 2017
About 11 months ago

Serving a Section 21 on tenant while house is uninhabitable

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Serving a Section 21 on tenant while house is uninhabitable

This is about a tenant who claims a a Section 21 notice constitutes illegal eviction because he can’t return to the property during rebuilding work.

I made a mutual agreement with my AST tenant to vacate my house temporarily for 3-4 months during rebuilding in lieu of rent, and he agreed. He left as planned without complaint.

However, while he was away, I was given serious information that caused me to give him two months’ notice by serving a Section 21 (it’s a periodic tenancy). The notice expires before the rebuilding work will finish.

Now he and his lawyer are claiming that this is illegal eviction or harassment, because he can’t reside in the house during the notice period, and because I am not allowing him to return after the agreed temporary absence for the rebuilding.

Therefore, he’s going to take me to court and is demanding compensation of £5,000 for various costs and distress he says I’ve caused.

Is he right that it could constitute illegal eviction if the tenant is not able to reside in the property during the notice period?

Also, does a mutual agreement that a tenant can return after rebuilding work become a form of forced eviction if, because of subsequent unforeseen developments, I give him notice to quit and so don’t let him return after all? I’m not sure what I have to do to resolve this.

Thanks for any help on this. I have no experience with this, and have found no analogous cases online, so I am very grateful for advice.

Ronald



Comments

Neil Patterson

10:17 AM, 21st November 2017
About 11 months ago

Hi Ronald,

This is a tricky one and I would advise professional help.

It is worth referencing Tessa Shepperson and her series of articles:

Section 21 – time limits, forms and retaliatory eviction >> https://www.property118.com/section-21-time-limits-forms-retaliatory-eviction/

"Retaliatory Eviction

Do you remember in an earlier post in this series, I talked about tenants whose landlords threatened to evict them if they complained about the condition of the property?

That is known as ‘retaliatory eviction’ and is a bit of a scandal. After all tenants should not be at risk of being evicted if they simply ask for their property (for which in many cases they are paying quite a high rent) to be put into proper repair.

Tenant’s organisations have been calling for something to be done about it for years, and at last measures were put in place in the Deregulation Act 2015. I should emphasise that for most landlords it won’t be a problem.
Here’s how it works:

If a Local Authority serve an ‘improvement notice’ on a landlord, requiring them to do works to put the property in a proper condition, then the landlord will not (in most cases) be able to serve a valid section 21 notice during the following six months.

Also – if the tenant has previously complained about one or more of the items mentioned in the improvement notice – any section 21 notice served by the landlord after their complaint and before the service of the improvement notice – will be rendered invalid.

The act also provides that when tenants make a complaint the landlord must provide a response within 14 days:

Saying what they intend to do to address the complaint, and
Giving a reasonable timescale for doing it

However, it is not clear whether or not complying with this will save the landlord’s section 21 notice served in advance of the improvement notice. Which is odd.

I would emphasise again that for most landlords, the retaliatory eviction measures are not going to be a problem – as their properties are too good to ever be the subject of an improvement notice.

Improvement notices can only be served by Local Authority Environmental Health Officers after an inspection of a property has disclosed a ‘category 1’ or ‘category 2’ hazard. These only apply to serious problems and an EHO is not going to serve an improvement notice on a minor issue just to please a tenant.

So, you do not need to worry about malicious or ‘devious’ tenants arranging for this simply so they can stay in the property without paying rent."

I would consider contacting Paul Shamplina and his team at Landlord Law. See his members profile and contact form >> https://www.property118.com/member/?id=190

Freda Blogs

11:37 AM, 21st November 2017
About 11 months ago

You do not tell us the nature of the ‘other information’ that caused you to serve the S21, but in my view you need to make it clear that the basis for the notice is not related to the works, but as a direct result of this other information (which must justify the notice in its own right, irrespective of the building work).

Do not let the tenant or his solicitor conflate the two issues, otherwise it could appear as though you used the works as an inappropriate method of obtaining possession.

Luke P

12:24 PM, 21st November 2017
About 11 months ago

Is the property in a selective licence area? I have seen conditions (Manchester, at very least) that: "When necessary, the licence holder must provide suitable alternative accommodation for occupiers when carrying out major works to the licensed premises for the period during which the works are being undertaken."

CARIDON LANDLORD SOLUTIONS

15:10 PM, 21st November 2017
About 11 months ago

I would suggest that as your case seems quite complex that you obtain legal advice.

RonaldC

6:40 AM, 22nd November 2017
About 11 months ago

Thanks for all these comments, much appreciated. But now I just discovered something else which I had no idea would make a difference: as this is a joint tenancy, apparently a Section 21 notice must go to all the tenants, not just the "bad" one who has been demanding compensation and who is months behind with rent. Is this correct?
But as it happens, one of the "good" tenants is just about to give notice - if she does (it's a periodic tenancy), would that end the whole tenancy anyway, without me having to do anything? Then, if the "bad" tenant decides to remain, would the possession process be any more difficult and time-consuming than with a Section 21? Thanks for any advice on this.

Mandy Thomson

9:12 AM, 22nd November 2017
About 11 months ago

Reply to the comment left by Robert Barnett at 22/11/2017 - 06:40
Yes, provided the "good" tenant ensures it's by letter and it complies with the tenant's notice period set out in the tenancy agreement.

When this expires, it's imperative that you don't treat either of them as a tenant or accept rent, or you will start a new verbal tenancy.

If either of the former tenants try claim the tenancy after the tenant's notice expires, you need to write to them stating there is no tenancy between you and any money you accept from them is for occupation charges only, not rent. See Thompson v Thorpe and Thorpe Taylor.

RonaldC

7:30 AM, 23rd November 2017
About 11 months ago

Reply to the comment left by Mandy Thomson at 22/11/2017 - 09:12
Thanks so much, this advice is really helpful.

RonaldC

17:12 PM, 26th November 2017
About 11 months ago

Mandy, the "good' tenant issued a Notice to Quit, as you advised, which is for one month ending on a last rental day (the tenancy agreement says minimum 60 days, but I have read on landlordlawblog that for the tenant the statutory minimum overrides this, so I accepted it). So I sent the other joint tenants a Landlord's Notice to Quit for one month ending on the same day, as advisory information, so they know the tenancy ends in a month - is that ok? If I issued them with a Section 21, then it would have extended the notice to two months, which I didn't want to do unless essential. I couldn't find any guidance as to what's the right procedure in this situation, so any suggestion is very welcome. Thanks.


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