Advice for landlords: What is a Section 21 notice?

A Section 21 (Form 6A) is the notice served upon a tenant to notify them that the landlord wishes to seek possession of the property on or after a certain date. The Section 21 is commonly referred to as the “no blame notice” as the landlord is not accusing the tenant of breaching the tenancy or misbehaving but only stating that they wish to have possession back of the property at some future date.

When can I use the Section 21 notice?

As this is a no blame route, the landlord can only seek possession at either the end of a fixed term or during a monthly periodic term on condition that the landlord had served the requisite notice period of three months. Historically the minimum notice period for a Section 21 has always been two months but on 26 March 2020, under the Coronavirus Act 2020, this was extended to three months for any notice served up until and including 30 September 2020. Furthermore, the Government has the ability to extend such a notice period from the current three month minimum up to and including six months if evidence suggests that tenants are in more danger of being evicted than first anticipated because of the crisis.

Do I need to use a certain form?

In days past, a Section 21 could have been served on the back on a fag packet but in 2015, new legislation introduced brought an obligation to use a prescribed form called the 6A. In reality this is about two-and-a-half pages in length when completed, and only requires information to be used that is already known to the landlord.

From our experience, the only real complication is working out the expiry date of the Form 6A. This can be calculated by taking the date of the notice ie. 1 May 2020, adding three months as a minimum notice period and then finally adding three days for service time. This would then result in an expiry date of 4 August 2020.

What are the compliance requirements for a Section 21?

For any tenancy that started on or after 1 October 2015, there is a raft of compliance requirements to be considered before a landlord can decide whether a valid Section 21 can be served. The list is as follows:

  • Tenancy Deposit: The deposit must have been protected within one of the three authorised schemes and prescribed information given to the tenant and any relevant person within thirty days of receipt of the tenancy deposit. Failure to adhere would not only sink a Section 21 in court, it potentially makes a landlord liable to pay financial compensation to a tenant who becomes aware of such non-compliance.
  • Gas Safety Record (GSR): A valid copy of a GSR must have been given to the tenant before they commenced occupation and any subsequent GSR must have been conducted by an authorised engineer within the expiry period (which is annually). Failure to comply with such requirements make the service of a Section 21 impossible and recent court decisions have indicated there is no option of remedying such non-compliance at a future date.
  • Energy Performance Certificate (EPC): A copy of a valid EPC must be provided to the tenant before a Section 21 is served.
  • How to Rent Guide (Checklist for England): The most relevant guide must be provided to the tenant before a Section 21 is served. This is an ambiguous compliance requirement as the most relevant version of the guide depends on which date a tenancy started and which version of the guide was relevant at that time. Considering there have been eight versions published since 2015 it can become complicated, so our advice is if in doubt, serve them all.
  • Landlord License Application: If the property requires a landlord to be licensed for either mandatory, selective or additional licensing then such an application must have been submitted to the local council before a Section 21 is served. It would also be beneficial for any landlord to ensure that evidence of submission, such as an email from the local council, was sought.

Summary

The service of a Section 21 in 2020 has become fraught with pitfalls, so it is extremely important that a landlord is fully aware of all the compliance obligations surrounding the service of such a notice. From our experience there are many eagle-eyed judges and defence solicitors lurking who will shoot down an invalid Section 21 at will and leave the uneducated landlord with a large legal invoice to pay.

If you have any questions, please do not hesitate to contact Foxes. Call our experienced lettings team on 01202 299600 or email lettings@foxes.co.uk

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