A Brief Guide to No Fault Evictions

The concept of no-fault evictions under Section 21 of the Housing Act 1988 has been a topic of intense debate, particularly in recent years as governments have moved towards reforming the private rental sector. This article explores what Section 21 is, the conditions under which it can and cannot be used, and the proposed abolition of no-fault evictions.

Understanding Section 21: The Basics

Section 21 of the Housing Act 1988 is a legal provision that allows landlords to regain possession of their property without needing to provide a specific reason; hence the term "no fault eviction." Section 21 applies to assured shorthold tenancies (“AST”s), which are the most common form of tenancy in the private rental sector. Under Section 21, a landlord can serve a tenant with a minimum of two months' notice, but not before the end of the first four months of the initial AST, to vacate the property upon the expiry of the notice period.

A Section 21 notice can be used to take effect at the end of a fixed term tenancy or during a periodic tenancy, which is a rolling contract that continues after a fixed term has ended. However, certain conditions must be met for the Section 21 notice to be valid and there are situations in which it cannot be used.

When Can a Section 21 Notice Be Used?

End of Fixed Term Tenancy:  

Landlords commonly use a Section 21 notice to take effect the end of a fixed term tenancy. This allows them to regain possession of their property without needing to provide a specific reason. The tenancy must have been an AST and the landlord must comply with various legal requirements for the notice to be valid.

Periodic Tenancy:  

If the fixed term tenancy has expired and the tenancy has transitioned into a periodic tenancy, the landlord can still use a Section 21 notice to end the tenancy. The notice period must align with the rental period of the periodic tenancy, which means that the two months' notice must coincide with the end of a rental period.

Break Clause:  

Some tenancy agreements include a break clause that allows either the landlord or the tenant to give notice to terminate the tenancy before the end of the fixed term, albeit such notice cannot be given before the end of the first four months of the initial AST period. If such a break clause exists, a landlord can use a Section 21 notice in accordance with the terms of the break clause.

Conditions for Serving a Valid Section 21 Notice

For a Section 21 notice to be valid, several key conditions must be met, including:

Deposit Protection:  

The tenant's deposit must be placed in a government-approved tenancy deposit scheme (TDS) within 30 days of receipt. If the deposit is not protected or the landlord fails to provide the tenant with the prescribed information about the scheme, the Section 21 notice will be invalid.

Energy Performance Certificate (EPC):  

The tenant must have been provided with an EPC for the property at the start of the tenancy. The EPC provides information about the energy efficiency of the property and is a legal requirement for all rental properties.

Gas Safety Certificate:  

The tenant must have received a valid gas safety certificate before moving into the property. This certificate confirms that all gas appliances, fittings and flues in the property have been checked and are safe to use.

How to Rent Guide:

The tenant must have been provided with the most up-to-date version of the government's "How to Rent" guide at the start of the tenancy. This guide provides tenants with essential information about their rights and responsibilities.

When Can a Section 21 Notice Not Be Used?

While Section 21 provides landlords with a relatively straightforward way to regain possession of their property, there are circumstances in which a Section 21 notice cannot be used:

Within the First Four Months of the Initial Tenancy:  

A Section 21 notice cannot be issued within the first four months of the initial tenancy. This restriction is intended to provide tenants with a minimum level of security during the early stages of their tenancy.

During a Fixed Term Tenancy Without a Break Clause:  

If a tenant is still within the fixed term of their tenancy and there is no break clause in the tenancy agreement, the landlord cannot use a Section 21 notice to end the tenancy early.

Other Protections:

If you have requested repairs from your landlord and are subsequently threatened with a Section 21 eviction notice, there are specific steps and protections in place that you can utilize:

Document the Request for Repairs:  

Ensure that your request for repairs is documented in writing. This can include emails, letters and text messages. Having a record of your request is crucial if you need to challenge the validity of the Section 21 notice.

Contact the Local Council:  

If your landlord fails to address serious repair issues, such as damp, mould or safety hazards, you can contact your local council. The council can inspect the property and, if necessary, issue an improvement notice or take emergency remedial action. If a local council serves an improvement notice or takes emergency remedial action, your landlord cannot issue a valid Section 21 notice for six months. This protection is designed to prevent landlords from using no fault evictions as a retaliatory measure against tenants who exercise their rights.

Challenge the Section 21 Notice in Court:

If you receive a Section 21 notice after requesting repairs, you can challenge its validity in court. You will need to prove that the notice is retaliatory and that the repair issues were serious enough to warrant the council's involvement.

Seek Legal Advice:

It is also advisable to consider seeking legal advice if you are threatened with eviction after requesting repairs. Organizations such as Shelter and Citizens Advice or a solicitor can provide guidance and support.

Apply to Court for a Stay of Execution:  

If the landlord proceeds with the eviction process, you may be able to apply to the court for a stay of execution. This will halt the eviction while your case is being reviewed.

Licensing Protection:  

In areas where the local authority requires landlords to have a licence, under selective or additional licensing schemes, for example, a Section 21 notice cannot be used if the property is not appropriately licensed. This requirement ensures that landlords meet specific standards before they can use no fault evictions.

Proposed Abolition of Section 21 No fault Evictions

The government’s proposed Renters’ Rights Bill is intended to abolish Section 21 no fault evictions. Instead, new possession grounds will be introduced for landlords to be able to reclaim their properties when they need to. As part of the government’s overall aim of transforming private tenant rights, this Bill is also expected to contain other key provisions, including those related to:

• strengthening tenants’ rights and protections, including empowering them to challenge rent increases and ending the practice of rental bidding wars.

• giving tenants the right to request a pet, which landlords cannot reasonably refuse, although they may be able to request insurance to cover potential damage by pets.

• applying a Decent Homes Standard to ensure homes are safe, secure and hazard free.  

• applying ‘Awaab’s Law’ in order to set clear legal expectations about the timeframes within which landlords must make homes safe where they contain serious hazards.

• creating a digital private rented sector database to bring together key information for landlords, tenants and councils.

• a new ombudsman service to provide fair, impartial and binding resolution to both landlords and tenants when disputes arise, reducing the need to go to court.  

• making it illegal for landlords to discriminate against tenants in receipt of benefits or with children.

• strengthening local councils’ enforcement powers, including new investigatory powers.

Conclusion

While Section 21 has provided landlords with a straightforward way to regain possession of their property, it has also been criticized for contributing to housing insecurity and power imbalances between landlords and tenants. The proposed abolition of Section 21 marks a significant shift in the private rental market, with the government aiming to create a more secure system for tenants, while ensuring that landlords still have effective means to manage their properties. As these reforms come into effect, it will be essential for both landlords and tenants to stay informed about their rights and responsibilities in order to be able to navigate the changing landscape of the private rental sector successfully.

FAQs:

Q. What is a Section 21 notice?

A. A Section 21 notice is a legal notice that allows a landlord to ask a tenant to leave the property after the fixed term of the tenancy has ended or during a periodic tenancy. It is known as a "no fault" eviction because the landlord does not need to provide a reason for asking the tenant to leave. However, certain conditions must be met for the notice to be valid, including those relating to tenant deposit protection, energy performance certification, gas safety certification and the provision of the “How to Rent” guide to tenants at the outset of the tenancy.

Q. Can a Section 21 notice be served during the fixed term of a tenancy?

A. A Section 21 notice cannot be served during the initial fixed term of the tenancy unless there is a break clause that allows the landlord to do so. The notice is typically served near the end of the fixed term or during a periodic tenancy.

Q. What are the legal requirements a landlord must meet before serving a Section 21 notice?

A. Before serving a Section 21 notice, a landlord must comply with several legal requirements:

• The tenant’s deposit must be protected in a government-approved tenancy deposit scheme.

• The tenant must have been provided with a valid Energy Performance Certificate (EPC).

• The tenant must have received a valid gas safety certificate before moving in.

• The tenant must have been provided with the latest version of the "How to Rent" guide.  

Failure to meet these requirements can invalidate the notice.

Q. What is the notice period for a Section 21 eviction?

A. The landlord must give the tenant at least two months' notice. The notice must be in writing and cannot require the tenant to leave before the end of the fixed term period unless a break clause exists.

Q. Can a tenant challenge a Section 21 notice?

A. A tenant can challenge a Section 21 notice if they believe it is invalid. Common grounds for challenging such a notice include the landlord’s failure to comply with legal requirements (such as deposit protection) or if the notice is perceived as a retaliatory eviction after the tenant requested repairs.

Q. What happens if a tenant does not leave after the Section 21 notice period?

A. If the tenant does not leave after the notice period, the landlord must apply to the court for a possession order. The court will then decide whether to grant the order based on the validity of the Section 21 notice.

Q. How does the proposed abolition of Section 21 affect tenants and landlords?

A. The government is working towards abolishing Section 21 evictions as part of the Renters’ Rights Bill. This change aims to improve security for tenants, ensuring that they can only be evicted for genuinely legitimate reasons. For landlords, this means they will need to rely on Section 8 grounds, which require proving a reason for eviction in court.

Q. What are the alternatives to using a Section 21 notice for landlords?

A. If a Section 21 notice is not applicable, landlords can use a Section 8 notice, which requires them to provide a specific ground for eviction, such as non-payment of rent, damage to the property or other breaches of the tenancy agreement.

Q. What should tenants do if they receive a Section 21 notice?

A. Tenants should first check the validity of the notice by ensuring that the landlord has complied with all legal requirements. They should also seek advice from organizations such as Citizens Advice or Shelter. If the notice is valid, the tenant will need to find alternative accommodation. If the notice is invalid, the tenant may be able to challenge it in court.

Sources:  

Checklist for Renting | GOV.UK  

The end of ‘no fault’ section 21 evictions | House of Commons Library | Published March 2023  

King's Speech | GOV.UK