Section 21 Notice – Landlords, don’t lose your right to serve one!
Please note: Due to recent decisions an update to this article is coming soon.
Private landlords face ever more legally imposed requirements to ensure the safety of their tenant and to protect the tenant’s rights. In addition to specific sanctions which can be imposed following a breach of these statutory requirements, recent case law suggests that a failure to provide certain information at the commencement of a tenancy can prevent a landlord from subsequently serving a Section 21 Notice (to recover possession of the property).
Where a tenant has an assured shorthold tenancy, regulations prevent a landlord from serving a Section 21 Notice unless the tenant has been provided with 1) the “How To Rent” booklet 2) a gas safety certificate and 3) an energy performance certificate. There is also a requirement on the landlord to safeguard the tenant’s deposit and to serve prescribed information in relation to that deposit within 30 days of receiving the deposit.
Up until recently, it had been considered that where the landlord had failed to serve these documents at the outset, they could be served belatedly, just prior to the service of the Section 21 Notice (provided that the deposit had been properly protected).
However, 2 new County Court decisions suggest that, in fact, a landlord may lose its right to serve a Section 21 Notice where it has failed to serve a gas safety certificate on its tenant at the very start of the tenancy and that such failure cannot be subsequently remedied.
Both cases concerned the late provision or non-provision of a gas safety certificate and so it is not clear whether a failure to serve the How to Rent booklet or an energy performance certificate would also prevent a landlord from proceeding with a Section 21 Notice. These decisions are only at County Court level and are not currently binding on other Courts. I understand that both are being appealed. If the decisions are upheld on appeal in the higher Courts, they may set binding precedent.
The key point for landlords (or their managing agent) is to ensure that copies of the gas safety certificate, How to Rent booklet and the energy performance certificate, along with the deposit protection information, are provided to the tenant at the same time as the actual tenancy agreement and, ideally, these would be integrated into that document.
Landlords should also ensure that they can prove service of these documents (if they are not incorporated into the actual tenancy agreement).
Where the tenancy has already commenced, it may be possible to serve this information prior to the start of any “replacement” tenancy or before any statutory periodic tenancy commences at the end of the initial fixed term.
Otherwise, landlords will have to seek possession using the less straightforward and longer procedure under Section 8 of the Housing Act 1988.
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