Section 21 Notice Validity
Up and down the country renters are receiving Section 21 notices before the Renters' Rights Bill becomes law and ends the practice of serving Section 21s.
In no-fault eviction proceedings, it is hard to challenge possession and eviction unless a tenant can show that the Section 21 notice was invalid.
In this blog, our Landlord and Tenant Solicitors in London explain the difference between a valid and invalid Section 21 notice.
Online and London-based Landlord and Tenant Lawyers
For legal advice on Section 21 notices and possession proceedings call the experts at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Why the validity of a Section 21 notice matters
If a Section 21 notice isn’t valid a landlord can't use it to evict their tenant. Instead, the landlord must either:
- Serve a Section 8 notice and then start possession proceedings or
- Issue a new Section 21 notice (if the rules allow them to do so)
Sometimes, even securing a delay to the implementation of a Section 21 notice is a major win for a tenant. For example:
- A landlord may decide to continue to rent to the tenant
- The tenant has extra time to find somewhere else to rent
With it being so difficult to find properties to rent, even an extra couple of months in a rental property can make a big difference to a tenant. Our Section 21 Notice Solicitors therefore recommend that tenants always check the validity of the notice.
When can a landlord not rely on a Section 21 notice?
A Section 21 notice may be invalid for two reasons:
- Procedural – the landlord made a mistake on the form
- The rules – the landlord failed to comply with the rules and as a penalty for not following them the landlord can't take advantage of the Section 21 notice procedure
Under the current law, a landlord can't start possession proceedings until either a valid Section 21 notice or Section 8 notice has been given.
Form 6A
Unless the landlord uses form 6A they won't serve a valid Section 21 notice. Some landlords don’t realise this and don’t use the prescribed form. It is therefore worth checking to see if the prescribed form has been served.
Dates on the Form 6A and validity
Even if your landlord has used the prescribed form, they may have got their dates wrong, meaning their Section 21 notice isn’t valid.
The three key date points on the Section 21 notice are:
- Is the notice period less than two months?
- Was the Section 21 notice sent to the tenant within the first four months of the start of the first tenancy agreement?
- Did the landlord start possession proceedings more than six months after serving the notice?
The two months’ notice on a Section 21 notice
Our Landlord and Tenant Solicitors receive many inquiries about the notice period on a Section 21 notice. The three main issues are:
- The notice period runs from the date the landlord gave notice
- The notice period ends on the date a tenant is meant to leave the property by
- If the notice period isn’t complied with the landlord cannot force entry – the landlord must apply for a possession order
Section 21 notice validity and deposits
A landlord can't serve a valid Section 21 notice if they have not complied with the regulations on tenant deposits.
To serve a valid Section 21 notice a landlord must have:
- Not asked their tenant for an illegal deposit
- Given their tenant the prescribed information about the deposit scheme
- Protected the tenant’s deposit in one of the regulated schemes
- Protected the deposit within the required timeframe
A Possession Proceedings Solicitor can tell you the timeframe for the various types of tenancy agreements.
For tenancies that began on or after 1 June 2019, most landlords can't charge tenancy-related fees and the deposit must have been limited to five weeks of rent.
If a landlord has not complied with the deposit rules, they can get around the valid Section 21 notice problem by returning the deposit to their tenant (or the amount of the overcharged deposit). Therefore, whilst deposit irregularities don’t solve the problem of a Section 21 notice, they can buy time for a tenant or the early return of a deposit. A returned deposit may, in turn, make it a bit easier to secure another rental property.
Section 21 notice validity and paperwork
Most accidental landlords don’t realise how much paperwork is needed to rent a home out. Even professional letting agents or landlords can get the paperwork wrong. Therefore, our Possession Lawyers always recommend that a tenant keeps all the documents given to them by their landlord or letting agent in case they later need to prove that the rules weren’t followed by the landlord or those acting on the landlord’s behalf.
A landlord can't validly serve a Section 21 notice if the tenancy agreement started, or was renewed after 1 October 2015, and a tenant wasn’t given the following paperwork :
- Prescribed information – the government publication on How to Rent
- Energy performance certificate (EPC)
- Gas safety certificate
A landlord can get around the issue by sending the correct paperwork with their Section 21 notice. The publication and EPC (an EPC is valid for ten years) could be historical but the gas safety certificate must be valid. A gas certificate is valid for one year from the date it was carried out.
If a landlord hasn’t sent the correct information at the start of the tenancy agreement or later and doesn’t realise their error when serving the Section 21 notice a tenant can buy themselves time by telling the landlord that the notice isn’t valid - that could extend the notice period from two to four months.
Section 21 notice validity and licences
If a tenant lives in a house in multiple occupation and the property requires a licence but the landlord hasn’t got one then the landlord can't serve a valid notice.
A landlord may not realise they need an HMO licence as each local authority decides on the type of property that requires an HMO licence in their area.
A landlord can resolve their Section 21 notice problem by applying for a licence.
Section 21 notices and revenge eviction
Many tenants fear raising repair issues in case of revenge eviction but a tenant may be able to challenge the validity of a Section 21 notice if a landlord issued a Section 21 notice within six months of receiving either an:
- Improvement notice or
- Emergency work notice
If tenants raise repair problems and think they are being subjected to a revenge eviction then they need specialist landlord and tenant legal advice as quickly as possible.
What happens if a Section 21 notice is valid?
A landlord may have served a valid Section 21 notice at the first attempt or after remedying issues, such as paperwork or the deposit. Once a Section 21 notice has been validly served a tenant is under notice to leave their rental home but the notice does NOT mean a tenant must leave on the end date of the Section 21 notice. The tenancy continues until either the landlord obtains a possession order and eviction order or the tenant decides to leave voluntarily. If a tenant is being made to leave before the landlord has followed the correct process the landlord may be illegally evicting the tenant.
Our Landlord and Tenant Lawyers recommend that tenants take legal advice as soon as they receive a Section 21 notice to check if the notice is valid and if a letter before action is required to force the landlord to comply with their obligations. Sometimes, when a landlord realises that a tenant won't just accept the validity of a Section 21 notice the landlord will realise that it is easier to work with their existing tenant or to help them secure alternative property.
Online and London-based Section 21 Notice Lawyers
For legal advice on Section 21 notices and possession proceedings call the experts at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Related Posts
How to Make a Successful Disrepair Claim: Protect Your Rights as a Tenant Now