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However, that problem has been replaced by others!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

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