COVID-19: Matters to be considered when relying on Section 21 notices

The Government has recently announced that landlords of residential properties will have to wait until at least September for claims to recover possession of their properties to be heard.

Where tenants are not in breach of their tenancy agreements and the agreement is an assured shorthold tenancy, the landlord will first have to serve Notice compliant with Section 21 of the Housing Act 1988 on the tenant.

The Government plans to abolish Section 21 Notices, but for the time being they are the main way for a landlords to recovery possession of their property from a tenant.

At one time, this was a relatively straightforward process but since 2007, there has been growing regulation and, the validity of Section 21 Notices has become complicated by statutory requirements.

Under the Coronavirus Act, a Section 21 Notice must give the tenant a minimum of 3 months’ notice and as before the Act, if there is a fixed term contract, it cannot end before the end of the fixed term and it cannot be served until at least 4 months’ of the tenancy has passed.

Landlords now need to consider:

• Whether the tenancy was ever for a fixed term or purely periodic, as this may affect the amount of notice required to be given to the tenant.
• Whether the tenancy followed a non-assured shorthold tenancy.
• Whether the tenancy started prior to a change in the law which came into effect on 28 February 1997.
• Whether the present occupant is the original tenant and, if not, how did they acquire the tenancy.
• Whether the property is part of a house in multiple occupation (“HMO”), and, if so, have the statutory requirements in relation to HMOs been complied with.
• Whether statutory requirements have been met, if a deposit has been paid.
• Whether the local authority has served a notice concerning disrepair and what has happened as a result of that notice
• Whether the requirements concerning the provision of an energy performance certificate, gas safety certificates and the Government issued how to 4ent guidance leaflet have been complied with
• Whether landlords have received payments that are now prohibited under the Tenant Fees Act 2019 and whether those prohibited payments have been repaid to the tenant or used in accordance with the tenant’s agreement or authority?

The above list is not intended to be exhaustive, particularly as regulations are changing rapidly. For example from 1 July 2020 compulsory electrical testing will become a requirement on all new tenancies and will extend to all tenancies during the course of 2021.

If landlords or tenants need further advice ion any of the above, please get in touch with Simon Tucker or Robyn Adams.