Introduction to Section 21 Notices
A Section 21 notice is a legal document used by landlords in England and Wales to regain possession of their rental property from tenants without having to provide a reason for the eviction. Commonly referred to as a “no-fault eviction,” this notice is governed by the Housing Act 1988 and is one of the most commonly used methods by landlords to end an assured shorthold tenancy (AST). However, for a Section 21 notice to be valid, it must meet specific legal requirements. If any of these requirements are not met, the notice can be deemed invalid, potentially delaying or preventing the landlord from regaining possession of their property.
This article explores the key factors that can render a Section 21 notice invalid, providing landlords and tenants with essential information to navigate the eviction process lawfully.
Key Requirements for a Valid Section 21 Notice
Proper Use of the Prescribed Form
Since October 1, 2015, landlords are required to use a prescribed form (Form 6A) when serving a Section 21 notice for tenancies that started or were renewed after that date. The use of this form is mandatory, and failure to use it can invalidate the notice. Form 6A includes specific information that must be provided to the tenant, ensuring that the notice complies with legal requirements.
For tenancies that began before October 1, 2015, landlords can use their own version of the notice, but it must still include all the required information and adhere to the correct format. To avoid any potential issues, it is advisable for all landlords to use the prescribed form regardless of when the tenancy began.
Correct Notice Period
A Section 21 notice must give the tenant at least two months’ notice to vacate the property. This period starts from the date the tenant receives the notice, not the date it is sent. If the landlord fails to provide the full two months’ notice, the notice can be deemed invalid.
Additionally, the timing of the notice is crucial. For fixed-term tenancies, the notice cannot expire before the end of the fixed term unless there is a break clause in the tenancy agreement that allows for earlier termination. For periodic tenancies (those that continue on a rolling basis after the fixed term ends), the notice period must align with the rental payment period. For example, if rent is paid monthly, the notice must give at least two months’ notice.
Tenancy Deposit Protection Compliance
One of the most common reasons for a Section 21 notice being invalidated is the landlord’s failure to comply with tenancy deposit protection (TDP) regulations. If the landlord took a deposit from the tenant, it must be protected in a government-approved TDP scheme within 30 days of receiving it. Additionally, the landlord must provide the tenant with prescribed information about the scheme used.
If the landlord fails to protect the deposit or provide the necessary information within the required timeframe, they cannot serve a valid Section 21 notice until the deposit is either returned to the tenant in full or with agreed deductions, or after a court has dealt with the deposit issue.
Provision of Required Documents
Before serving a Section 21 notice, landlords must have provided the tenant with certain documents at the start of the tenancy. These documents include:
- Energy Performance Certificate (EPC): The tenant must be given a copy of the EPC for the property, which rates the property’s energy efficiency.
- Gas Safety Certificate: If the property has gas appliances, the landlord must provide a copy of the gas safety certificate. This certificate must be renewed annually and a copy given to the tenant within 28 days of the annual check.
- How to Rent Guide: Landlords are required to provide tenants with the latest version of the government’s “How to Rent” guide at the start of the tenancy. This guide outlines the rights and responsibilities of both landlords and tenants.
Failure to provide any of these documents before serving a Section 21 notice can render the notice invalid.
Compliance with Licensing Requirements
In some areas, landlords are required to obtain a license from the local authority to rent out their property. This is particularly common in areas with selective licensing schemes or for properties that are classified as Houses in Multiple Occupation (HMOs). If a property requires a license and the landlord does not have one at the time of serving the Section 21 notice, the notice may be deemed invalid.
Landlords should check with their local authority to determine whether their property requires a license and ensure that all licensing requirements are met before serving a Section 21 notice.
Retaliatory Eviction Provisions
The Deregulation Act 2015 introduced measures to protect tenants from retaliatory evictions, where a landlord might attempt to evict a tenant in response to a complaint about the condition of the property. If a tenant has made a written complaint to the landlord about disrepair or other issues, and the landlord has not adequately addressed the complaint, the tenant can contact the local authority. If the local authority issues an improvement notice or an emergency remedial action notice, the landlord cannot serve a valid Section 21 notice for six months.
If a Section 21 notice is served after a complaint has been made but before the local authority has issued a notice, the tenant may still be able to challenge the notice as a retaliatory eviction.
Common Mistakes That Invalidate a Section 21 Notice
Incorrect Completion of the Notice
Even minor errors in completing the Section 21 notice can result in it being invalid. Common mistakes include:
- Incorrect dates: The notice must clearly state the date on which the tenant is required to leave the property. If the date is wrong or does not comply with the notice period requirements, the notice may be invalid.
- Incorrect tenant names: All tenants listed on the tenancy agreement must be named correctly on the Section 21 notice. Misspelling or omitting a tenant’s name can invalidate the notice.
- Incorrect address: The property address on the notice must match the address listed on the tenancy agreement. Any discrepancy could render the notice invalid.
Serving the Notice Incorrectly
The method of serving the Section 21 notice is also important. Landlords must ensure that the notice is served correctly to avoid it being deemed invalid. Acceptable methods of service include:
- Hand delivery to the tenant.
- Sending the notice by post (preferably using recorded delivery to provide proof of postage and receipt).
- Email, if the tenancy agreement specifically allows for service by email.
It is essential to keep evidence of how and when the notice was served, as this may be needed if the tenant disputes the validity of the notice.
What Happens if a Section 21 Notice Is Invalid?
Correcting the Errors
If a Section 21 notice is deemed invalid, the landlord cannot proceed with eviction based on that notice. Instead, the landlord must correct any errors and serve a new Section 21 notice that complies with all legal requirements. This can delay the eviction process, as the landlord will need to restart the notice period, giving the tenant at least another two months to vacate the property.
Potential Court Challenges
If a landlord proceeds with legal action based on an invalid Section 21 notice, the tenant can challenge the validity of the notice in court. If the court finds that the notice is invalid, the eviction process will be halted, and the landlord may be required to pay the tenant’s legal costs.
To avoid these issues, landlords should ensure that all legal requirements are met before serving a Section 21 notice and seek legal advice if there is any uncertainty.
Conclusion: Ensuring a Valid Section 21 Notice
Serving a valid Section 21 notice is a critical step in the eviction process, and any mistakes can lead to delays and legal challenges. Landlords must be diligent in ensuring that all legal requirements are met, from using the correct form and providing the necessary documents to protecting the tenant’s deposit and complying with licensing requirements.
By understanding the common pitfalls and taking steps to avoid them, landlords can minimize the risk of their Section 21 notice being deemed invalid and ensure a smoother eviction process. Tenants, on the other hand, should be aware of their rights and the circumstances under which they can challenge a Section 21 notice to protect themselves from unlawful eviction.
