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An end to Retaliatory Eviction

View profile for Helen Porter
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On 1 October 2015, new rules are coming into force which will affect the giving of Section 21 Notices giving at least two months’ notice requiring a tenant to deliver up vacant possession of residential property let under an assured shorthold tenancy, without having to prove fault on the part of the tenant. Helen Porter, Associate Solicitor in the Commercial Litigation team, here reviews the changes and what this means for landlords and tenants.

The Deregulation Act 2015 will amend the Housing Act 1988 in an attempt to put an end to so called ‘retaliatory evictions’. That is where a minority of private landlords may have served s.21 notices after a tenant has complained about something, usually that repairs are needed to the rented property. Attempts to modify the law in Parliament to prevent this, failed in 2014.

Section 33 of the 2015 Act will restrict the landlord’s ability to serve a section 21 notice. This is limited to circumstances where a tenant has made a written complaint to the landlord regarding the condition of the property before service of the section 21 notice and the landlord has not provided an adequate written response within 14 days of the complaint and the tenant has complained to the Local Authority which then serves an Improvement Notice or an Emergency Remedial Notice on the landlord.

If such a Notice has been issued by the Local Authority, then the landlord is unable to serve a valid section 21 notice to bring the tenancy to an end for six months from the date of the Local Authority’s Notice being served or suspended.

There are some exceptions, for example where the Local Authority Notice is revoked, the property is genuinely on the market for sale, in the case of mortgage repossessions and where the tenant has caused the disrepair. This is likely to cause argument as to who is responsible for the disrepair and may cause delay to possession proceedings.

There is likely to be an effect on possession proceedings—in future there could be a race as to who gets in first: the tenant with a complaint to the Local Authority or the landlord with a section 21 notice. Local Authorities will also need to move fast with the issuing of their notices.

The 2015 Act also changes the rules on the timing of service of a section 21 notice which is necessary in all circumstances to give the landlord the right to possession at the end of the fixed term or after the tenancy becomes “periodic”. Some landlords currently serve a section 21 notice expiring on the last day of a six month fixed term within the first four months of a fixed term. Under the new provisions, this will no longer be possible unless the section 21 notice is hand delivered on exactly the four month date. Rights of occupation actually ending on the last day of a six month term will therefore be rare.

There have been technical difficulties with correctly specifying the end date of section 21 notices that do not expire on the last day of the fixed term. Now, a modified section 21 notice is to be introduced which will avoid the need for a landlord to specify within the notice, the last day of the period of the tenancy as the expiry date. This should simplify the possession notice process and reduce the possibility of errors in drafting section 21 notices for landlords.

These changes will only initially apply to new fixed term tenancies entered into from 1 October 2015. However, the provisions will eventually apply to all tenancies but this will not be for another three years.

Helen advises that landlords can, however, still use section 8 notices under the Housing Act 1988 for ending a tenancy but, in those circumstances, will need to show a breach of the tenancy agreement by the tenant.

If you need advice on this area of property law, you can contact Helen on 02380 717717 or email helenporter@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.