A series of articles looking at the new rules regarding section 21 notices – applicable in England only – for tenancies created after 1 October 2015.
Tenants organisations have been talking about retaliatory eviction for a long time – the practice carried out by some landlords of evicting their tenants when they ask for expensive (or indeed any) repair work to be done.
Last year Sarah Teather tried to get a private members bill passed, but although it was ‘filibustered out’ the main items were then included in the government’s Deregulation Act (section 33).
So what does it say?
Basically – if a tenant makes a complaint, a landlord must give an adequate response within 14 days. An adequate response is where the landlord states what he is going to do to resolve the problem and his time limit for dealing with it.
If the tenant THEN goes to the local authority and makes a complaint AND they serve a notice, the landlord cannot serve a section 21 notice for 6 months.
Or if the local authority serve the notice anyway, no valid section 21 notice can then be served for 6 months. But it’s all right (for the landlord) if the s21 notice was served before the complaints or (if there were no complaints) before the local authority notice was served on the landlord.
Some interesting points:
It is only the service of the local authority notice which triggers the 6 month prohibition for section 21 notices.
So, unless the Court of Appeal is able to argue otherwise in due course, the mere fact of the landlord failing to give an ‘adequate response’ will not help the tenant. The landlords notice will still be valid.
The whole anti-retaliatory eviction structure therefore, depends on the local authority notice – nothing else. This must be one of the following
(a) a notice served under section 11 of the Housing Act 2004 (improvement notices relating to category 1 hazards),
(b) a notice served under section 12 of that Act (improvement notices relating to category 2 hazards), or
(c) a notice served under section 40(7) of that Act (emergency remedial action);
As local authorities and their environmental health officers are very pushed for time (local authorities having had to cut their staff to the bone due to savage cuts to their budget) they are unlikely to be willing to support ‘try-ons’ by nightmare tenants wanting to stay on when their landlords are desperate to get them out.
This isn’t to say that this will never happen – just that it is very unlikely. Very.
Find out more
I did an interview with Rajeev Nayyar of Fixflo recently which has been published as part of our Landlord Law TV series (episode two) which is very informative.
You will find it here.
Clare says
September 28, 2015 at 4:14 PMI have to say, my local authority has been close to useless in dealing with repair issues once reported, they are doing everything they can to avoid issuing an improvement notice because to carry out a risk assessment is too much work (their words)I’ve wondered whether they actually really there to help tenants as my experience has been dire and I am now chasing both LL and council. I cannot belive how many times I have had to chase for updates and action, it’s been 7 months reported to landlord and months to council, 2 inspections during that time and they are still negotiating with LL to start work… What chance to tenants have with no support, my local council don’t even have a TRO anymore! Sorry I kow this isn’t the place to rant but thats the reality!
Clare says
September 28, 2015 at 7:32 PMOmitted the number for council, disrepair reported 4 months ago.
Rent Rebel says
October 1, 2015 at 11:40 PMWill be very interesting to see what happens if possession hearings get to court and the council hasn’t attended the premises. To my mind, the possession should not go ahead. But if word gets round, there are tenants who will taking good advantage of it.
I watched the interview with Rajeev from Fixflo – he’s good isn’t he! I think I spotted one error though. Rajeev says (at 12 mins in) that: you can’t serve a S21 at 4 months+1 day into the tenancy – because “if you don’t issue proceedings within 6 months.. you’ve lost it”
But he’s getting confused, I think.
The 6 months – in which to issue proceedings – is 6 months from date of expiry of the notice. So a S21 cd be served at 4 months+1 day and wd expire at 10 months+1 day of the tenancy if not used. Guess it will become commonplace for tenancies to just roll on past 6 months now.
Rajeev says
October 2, 2015 at 9:03 AMHi Rent Rebel
Thanks for your comment and glad to hear you liked the interview.
I’ve gone back to the legislation (section 36 (4)(D) of the Dereregulation Act 2015) to double check and it states that:
“Subject to subsection (4E), proceedings for an order for possession under this section in relation to a dwelling-house in England may not be begun after the end of the period of six months beginning with the date on which the notice was given under subsection (1) or (4).”
In this context I interpret “given” as the date on which the notice is served rather than when it expires.
Always keen to learn more though so if you don’t agree with that interpretation please do give me a call to discuss (number on http://www.fixflo.com website).
Rent Rebel says
October 2, 2015 at 1:50 PMHi Rajeev,
Using this from Giles Peaker as my reference: it’s expiry.
http://nearlylegal.co.uk/2015/09/1-october-2015-section-21-day/
A possession claim cannot be started on a section 21(1) or (4) notice after the end of 6 months from the date the notice was given. Or for a s.21(4) notice where the notice period has to be longer than two months, a possession claim cannot be started based on that notice more than 4 months after the end date specified in the notice.
(specifically, that’s the 8th paragraph)
I was super impressed by your blinding knowledge of everything else though.
Rent Rebel says
October 6, 2015 at 6:18 PMAnother way of putting this..
If you (legally) serve the S21 at 4 months + 1 day and your tenants don’t leave at 6 months + 1 day, then you effectively have 4 months left in which to get your possession proceedings started. Cos the S21 expires at 10 months + 1 day.
Rent Rebel says
October 22, 2015 at 8:58 PMI had to come back here again and correct myself.
I said above that :
“The 6 months – in which to issue proceedings – is 6 months from date of expiry of the notice. ”
I meant to say…
“The 6 months – in which to issue proceedings – is 6 months from date of service of the notice. ”
I got confused by assuming that the served date and the end date on the S21 wd always be the same.
And Rajeev confused the service of the notice with the start of the tenancy.
Roy says
November 23, 2015 at 9:10 PMSurprisingly, no restrictions on serving a Section 8 notice on Ground 1, as far as I can see.
So unscrupulous landlords who at some point previously lived in the property have a huge get out of jail card here, right?