The government have announced that they will be taking away the right for landlords to evict under section 21. But if they do that – tenants will no longer have the protection of
The Section 21 pre-requisites
One of the things which the government has been doing over the past few years is attaching more and more conditions to the right to use section 21.
They are in effect saying “All right, you can evict your tenant without having to give a reason – but only if you comply with these conditions or (as they are normally described as) pre-requisites”.
At present the section 21 pre-requisites include:
- Two months notice in the proper form
- An HMO license if the property is a licensable HMO
- Proper protection of any deposit paid and service of ‘prescribed information’
And, in England only:
- Service of a valid Gas Safety Certificate before the tenants move in, and
- Service of an Energy Performance Certificate (both for tenancies which started or were renewed on or after 15/10/2015 only), and
- Service of the Government’s ‘How to Rent’ booklet
- The use of a prescribed form
- Time limits – no notice to be served during the first 4 months of the tenancy and the notice to have a life of (in most cases) 6 months, plus
- No valid section 21 notice can be served if an improvement notice has been served on the landlord by the Local Authority within the past six months
Why the section 21 pre-requisites are important
Landlords are terrified of losing the right to use section 21 – as they fear being stuck with a tenant who is not paying rent, or who is damaging the property or who is behaving in an anti-social manner.
This means that (when they are aware of them) Landlords make it a priority to comply with all the section 21 rules. As if they don’t – tenants are protected.
But if the right to use section 21 is removed altogether – what incentive will they have to, for example, get a gas safety certificate? Bearing in mind that enforcement is in many areas almost non-existent?
The criminal landlords
Following on from this – the only people who are not bothered by the pre-requisites are the growing number of rogue or criminal landlords. Because they never take any notice of the law anyway.
So equally they won’t be troubled by the removal of section 21. They have other methods of making tenants leave.
One of the biggest problems we have in the private rented sector is the almost total failure of the authorities (with a few honourable exceptions) to enforce the law.
I will be looking at this in another post.
Priceless stuff, Tessa. All the conditions on a section 21 notice now (to make it valid) are really a justification for keeping it yeah? Because, oh, “think of all the work”.
Just pointing this out. There are more things to point out which will be in separate articles. Each article will cover a separate point.
I will also be doing some posts about the ‘evil’ aspect of s21 as I do see why it is a problem. But just removing it could be counter productive.
Currently the pre-requuisites do form a useful function. Which needs to be taken into account.
Yes, they need to be taken into account. I welcome some intelligent reflection on that – which this really isn’t, sadly. It’s clickbait. Especially with that headline.
One has to take SEO into account when writing posts as there is no point in writing something no-one reads.
What ‘intelligent reflections’ have been left out of this post specifically on this point then?
Why don’t you put them in a comment yourself and say something constructive rather than just being negative and rude all the time?
What you call rude Tessa I would just call assertive, opinionated etc.. Offending sensibilities is no more my worry than it seems to be yours. As for offering up something constructive in comments, fair to say i do that regularly. But if you want me to write something with meat on it then I do charge.
Maybe. And maybe my comment was in itself rude. In which case I apologise. But I do get very tired of relentless negativity.
If you’re not bothered about the consequences (which politicians and lawmakers don’t seem to be), then the easy solution would be to impose the pre-requisites on to section 8.
That may happen. But many landlords will be unhappy if pre-requisites are imposed which make it difficult for them to, say, evict for serious rent arrears. Which could result in their existing the sector.
If the government was minded to actually care about landlords who, lets be honest, have already breached the law in starting a tenancy without the pre-requisites, then the solution is obvious:
Only have to pre-requisites apply to certain grounds (such as the new grounds that will inevitably be introduced). Ground 8, for instance, could remain the same, and require no pre-requisites at all.
Also, as far as I’m aware, defendants in Section 8 are already given the opportunity to raise a counter-claim for such things as disrepair and the like. The form they receive from the court when proceedings begin makes this a relatively simple box-ticking exercise on their part.
“Only have to pre-requisites apply to certain grounds (such as the new grounds that will inevitably be introduced).”
I wouldn’t be surprised if the Government did just that.
Which would result in lower standards as landlords unable to get out are unlikely to maintain to a good standard.
As per many of the run down properties still with pre section 21 tenancies.
Getting rid of section 21 whilst keeping ground 8 the same would be a terrible option. Many landlords (including myself) use section 21 for rent arrears because ground 8 does not work well. Not that S21 is much good either. – it took me 6 months to get rid of a tenant that was not paying his rent.,
Peter, what issues have you faced with Section 8? How could it be improved?
We’ve never had a hiccup ourselves, so I’ve always been curious.
Ikram,
I’ve had the ‘fiver under 2 months rent’ pulled the day before the hearing. Can’t fully remember why it failed first time, think they used the useless discretionary grounds.
Solicitor finally got them out with a section 21. Legals and arrears cost about 4K, plus about 2K of damage and a lot of apologising to the neighbours.
(All unrecovered).
Done it myself ever since using section 21.
Wouldn’t fancy doing a ground 7a alone though.
“How could it be improved?”
Mandatory possession after 2 months rent arrears.
Unless the rent and half the costs has been paid into a court approved escrow account. And then the tenant has to prove any counterclaim for non payment.
The most difficult one though is the second biggest reason for landlords serving section 21, anti social behaviour.
Ikram,
I spoke to my solicitor and he advised that Section 21 was better, mainly because it would be more certain.
The tenant failed to pay the full rent one month, saying he would pay it later. The next month no-payment and not communication. (and none for the next 5 months,
Sp I would have had to wait another month to start S8, negating most of the speed advantage.
The court hearing was delayed by Christmas. Early in January there was a possession order with 2 weeks notic issued. When my agent checked the house was empty and the neighbours had not seen him for a week. Refurbishing the property cost £7k. It was last refurbed in 2016 just before he and his family moved in., though his partner left with his children in 2017 and we gave him anew AST.
Very few if any campaigners for tenants rights are opposed to measures to evict for rent arreas, The campaign to end section 21 has entirely been about deserving tenants being protected from homelessness, in return for having spent most of their income bolstering someone’s pension.
Except [possibly in London rentters do not spend most of their income on rent. In the NW where I live it is closer to a quarter on average. The tendancy of Londoners to think they are normal is understandable, but annoying to the other 90% of the country.
S21 is needed because S8 is broken. In Scotland when they replaced their equivalent theymade it easier to evict for arrears and allowed for eviction tp sell.
There are valid and moral reasons why it might be necessary to evict for no fault of the tenant. S8 does cover some of them.
S8G1 deals with landlords moving into the property. This is number one because controls were first introduced as war time measures. The aim was to allow soldiers posted abroad to let out their homes whilst still having somewhere to live when the posting ws over. The alternative is leaving the properties empty which is not better. According to Tessa S21 if often used in place of this as it can be faster.
I would remove the notice requirement, add a 2 months notice of apply to court and keep the occupation requirement.
S8G2 is to allow mortgage comparies to repossess and sell for the full value. Only once have I been asked to included the appropiate notice and that was not valid as I was buying an already tenanted property. I eventually went with a different lender who used a solicitorr less ignorant of the law. Again according to Tessa this is rarely used.. I would get rid of the notice in the TA, but require the lender to send a notice to the address addressed to the occupier giving warning that the property may be repossessed 2 (or maybe 3) months before applying to court (and keeping the 2 months delay after proceedings.
Discouraging lenders by prohibiting this would reduce the money going into housing, and could enable a form of fraud.
The incentive to get a gas safety certificate et al is not a valid argument for the existence of S21 , only enforcement on the matter from the local authority will have any effect of creating an incentive – and such enforcement was and is almost entirely absent due to the slow death of local authorities. Good riddance to section 21 IMO. An absolutely awful imposition on what is now millions of people.
Many of the millions might well be homeless if it wasn’t for S21 reversing the decline in the PRS.
The enforcement for Gas Safety Certificates actually lies with the Health and Safety Executive as the regulations are made under the Health and Safety at Work Act 1974 and enforcement of that act in private dwellings falls to the HSE
I’m not sure that they have done a particularly good job either.
But the splintering of responsibility for standards between various bodies – the HSE, and various different council departments (which tend to have different names in different authorities) contributes towards the problems tenants have in enforcing their rights.
Here is a post from D of Nearly Legal https://nearlylegal.co.uk/2019/04/sectoral-regulation-without-section-21/ which is more or less on the same point as this article. IE that section 21is used to enforce regulation.