For assured shorthold tenancies (ASTs) granted on or after 1 October 2015 (and, from 1 October 2018, all ASTs), sections 33 and 34 of the Deregulation Act 2015 restrict the landlord’s ability to serve a valid section 21 (s21) notice to terminate ASTs where a tenant has complained to the landlord about the condition of the property and the local authority has served a “relevant notice” on the landlord.
When can’t a landlord serve a valid s21 notice
More specifically, a s21 notice will be invalid (i.e. cannot be relied upon) if it is served either within 6 months of service of a “relevant notice” or, where the operation of the “relevant notice” has been suspended, within 6 months of the suspension end date in the following circumstances:-
- Before the s21 notice was given, the tenant made a written complaint to the landlord (or the landlord’s agent) about the condition of the property (if the tenant has not been given the landlord’s postal or email address, or has made reasonable efforts to contact the landlord but was unable to do so, he need not make a written complaint).
- The landlord either:-
- Did not respond to the complaint within 14 days;
- Provided an inadequate response to the complaint i.e. setting out the action the landlord intends to take and a reasonable timescale within which this action will take place; or
- Served a s21 notice following the complaint.
- The tenant then made a complaint to the local authority about the same, or substantially the same, subject matter as the complaint to the landlord.
- The local authority served a “relevant notice” in response to the complaint.
What is a relevant notice
A “relevant notice” is one of the following types of notice:
- An improvement notice under section 11 of the HA 2004 relating to a category 1 hazard.
- An improvement notice under section 12 of the HA 2004 relating to a category 2 hazard.
- An emergency remedial action notice under section 40(7) of the HA 2004.
When does a relevant notice not prevent a valid s21 notice being served
However, a s21 notice can be validly served in the following circumstances:
- The relevant notice has been wholly revoked under section 16 of the HA 2004 due to it having been served in error.
- The relevant notice has been quashed under paragraph 15 of Schedule 1 to the HA 2004.
- A decision of the local authority to refuse to revoke the relevant notice has been reversed under paragraph 18 of Schedule 1 to the HA 2004.
- The local authority’s decision to take the action set out in the relevant notice has been reversed under section 45 of the HA 2004.
- The operation of the relevant notice has been suspended (a valid s21 notice can be served before the day on which that suspension ends).
The retaliatory eviction provisions do not apply in the following circumstances:
- The tenant is in breach of its duty to use the premises in a tenant-like manner (or an express provision in the tenancy to the same effect).
- The premises are genuinely on the market for sale.
- The landlord is a private registered provider of social housing.
- The premises were charged before the grant of the tenancy and the mortgagee wishes to exercise its power of sale and, at the time the section 21 notice is given, requires vacant possession to exercise the power of sale.
An order for possession will still take effect if a relevant notice is served after the order has been made but, if the s21 notice becomes invalid before an order for possession is made, the court must strike out the possession proceedings (so the landlord cannot obtain an order for possession).