The Section 21 minefield

The tenancy deposit scheme has been in force since 6 April 2007. As a result landlords are now well versed in ensuring that deposits in respect of assured shorthold tenancies are paid into deposit protection schemes.

However, further amendments to legislation effective from April 2012 and from October 2015 have caught some landlords out and left them exposed to potential penalties for failing to comply with their statutory obligations not to mention being unable to serve a valid notice seeking possession of a property under section 21 of the Housing Act 1988.

In order for a section 21 notice to be valid for an assured shorthold tenancy starting on or after the 1 October 2015 a landlord must ensure that,

  1. not only must the deposit be protected within a deposit protection scheme within 30 days of receipt, but prescribed information relating to the deposit must be served by the landlord on the tenant. This should be within that same period of time. The precise information that has to be served is found here
  2. a copy of the Government’s most recent ‘How to Rent’ booklet must have been served on the tenant.
  3. if the property has gas supplied to it, a copy of a gas safety certificate dated within the last 12 months must have been served on the tenant
  4. an energy performance certificate for the property must also have been served

Even then, if the council has served an improvement notice or an emergency remedial notice about the property in the last 6 months then a landlord has to consider whether the tenant has made a complaint about the condition of the property to the landlord in writing. If so, the landlord should have responded within 14 days setting out steps to fix or remedy the problem. If the landlord has not done so and the council then inspects the property before serving an improvement notice or emergency remedial notice before a possession order is made, any section 21 notice then becomes invalid so long as the council notice is not withdrawn.

If the deposit was paid into a protected scheme within 30 days and remains protected but the prescribed information relating to deposit was not served in that period, providing the information is served in full prior to service of the section 21 notice, the notice will be valid (assuming service of the other documentation has also been effected).

Much care should be taken when complying with these obligations at the outset of a tenancy in order to ensure that there are no unexpected complications later on. If you are a landlord and are in any doubt, we suggest you obtain professional assistance and invite you to contact our Rob Synnott, in our Civil Litigation team, to discuss your situation further.

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