Proposed changes to S.21

As well as the clauses introducing the retaliatory eviction proposals, the Government’s proposed amendments to the Deregulation Bill would make some other changes to s.21. The effects would be:

No s.21 notice can be served within the first 4 months of the shorthold tenancy, thus ending the all too widespread practice of serving a s.21 at the time the tenancy agreement is signed (though I’d still say that was probably caught by the deposit rules). The proposals also make clear that possession proceedings cannot be begun before 6 months from the start of the tenancy (that disposes of an idea some bright spark landlords had, that it was OK to start proceedings before 6 months so long as the possession order was made after the 6 month date).

The codification of Spencer v Taylor in removing the need for a s.21 notice to specify the exact date of the end of a period of the tenancy (not, as the DCLG notes wrongly have it ‘the exact date a tenancy comes to an end’).

A prescribed form of s.21 notice which must be used, with an information pack for the tenants.

A ban on serving a s.21 notice when the landlord is in breach of ‘a prescribed requirement’. The ‘requirements’:

“that may be prescribed are requirements imposed on landlords by any enactment and which relate to-

(a) the condition of dwelling-houses or their common parts,
(b) the health and safety of occupiers of dwelling-houses, or
(c) the energy performance of dwelling-houses.”

Secondary legislation would deal with this and it is likely to included gas safety certificates and providing EPCs. Meeting the requirements belatedly would enable a s.21 to be served.

There would also be a requirement to provide prescribed information to the tenant (this to be set out in secondary legislation).

Rent repayment. Where a s.21 notice ‘ends’ a tenancy other than at the end of a period of the tenancy, and rent for that period has been paid in advance, and the tenant leaves before the end of the period, the landlord must pay the rent back to the tenant, pro rata for each full day unoccupied.

All of this will only apply to new tenancies granted on or after the date of commencement. After three years from commencement, it will apply to all ASTs.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Housing law - All and tagged .

26 Comments

  1. Pingback: Proposed changes to S.21 – NearlyLegal | Current Awareness

  2. [QUOTE]This amendment to the Deregulation Bill is designed to be a balanced package of
    measures that will benefit both tenants and landlords. The amendment covers four areas
    and will make the eviction process more straightforward for landlords in situations where the
    tenant should be evicted, for example, because of non payment of rent or anti social
    behaviour through the introduction of a prescribed form notice
    [/QUOTE]

    Hmm. Seems to me there already is a prescribed form notice, isn’t there? The bl**dy useless Section 8 notice.

  3. that disposes of an idea some bright spark landlords had, that it was OK to start proceedings before 6 months so long as the possession order was made after the 6 month date

    Well, following on David’s post on carefully reading what the law says, section 21 only states that when a possession order is made, it cannot be made to take effect before the 6 month date (from start of original tenancy).
    This is not the same as preventing proceedings from starting before the 6 month date, or even preventing orders from being made before that date, since notices could expire well before that date. ;-)

    Where a s.21 notice ‘ends’ a tenancy other than at the end of a period of the tenancy, and rent for that period has been paid in advance, and the tenant leaves before the end of the period, the landlord must pay the rent back to the tenant, pro rata for each full day unoccupied.

    This section of the amendments is rather problematic in my view.
    It states that the tenant is entitled to a refund when:

    (a) as a result of the service of a notice under section 21 the
    tenancy is brought to an end
    before the end of a period of
    the tenancy,

    (c) the tenant was not in occupation of the dwelling-house for
    one or more whole days of that period.

    A section 21 notice has no effect on the tenancy. The tenancy will end when a surrender occurs/notice to quit takes effect/court order is executed, not when the tenant is no longer in occupation (not to mention arguments about what ‘occupation’ means).

    This would entitle the tenant to just pack and leave without paying further rent even though the tenancy still exists, even if only for the last period of the tenancy.

    Why not restrict this to entitling the tenant to a pro-rate refund just based on the date the tenancy does end?

    • I know what the argument was re the date of possession order. However, it meant starting possession proceedings before a s.21 ‘intention to seek possession’ could take effect. So before the tenants could be expected to leave. A claim for possession states LL is entitled to possession as at date of claim. Which you wouldn’t be. Hence a damn stupid idea.

      The ‘tenancy brought to an end’ part of that clause is problematic, I agree. However, the tenancy could be ‘brought to an end’ by the tenant leaving after the s.21 date. That would be a valid surrender. The landlord couldn’t argue otherwise, having served notice of requiring possession.

    • However, it meant starting possession proceedings before a s.21 ‘intention to seek possession’ could take effect.

      Nothing prevents a s.21 notice from taking effect earlier than the 6 month date since nothing prevents the original tenancy from being for a term of less than 6 months.
      In fact, reading section 21 by the letter a court would have to make a possession order in such case but with an effective date at the 6 month date.
      That’s perhaps a side effect of the removal of the minimum 6 months term in 1997…

      However, the tenancy could be ‘brought to an end’ by the tenant leaving after the s.21 date. That would be a valid surrender. The landlord couldn’t argue otherwise, having served notice of requiring possession.

      That’s interesting because the issue is often debated.
      My contention is that if that is the case then all the landlords who serve Sword of Damocles section 21 notices are allowing their tenants to leave whenever they please without notice.

    • If you are talking a fixed term of less than 6 months, then technically maybe, except there is the problem of the declaration on the claim form that the LL is entitled to possession as at date of claim. Which they very very arguably aren’t, because no possession order could be made at that date, by statute. So it would be a brave LL who tried to argue that in front a District Judge. It remains a damn stupid idea.

      On the surrender issue, anyone who serves a s.21 at the start of the tenancy – say 6 months fixed term – expressed to take effect in two months may well be doing just that. of course, if it said ‘at end of fixed term’ it wouldn’t (but that will probably become an academic issue for new tenancies soon)

    • Which they very very arguably aren’t, because no possession order could be made at that date, by statute

      Statute only refers to the effective date of a possession order when the order is made, and section 21 says that it can be made before the 6 month date.

      Anyway, I guess that’s not very important for the vast majority of real live cases…

      I’m not sure I follow you on the second, and more important, issue:
      Are you saying that a tenant may leave at any time he wishes, and that it will end the tenancy, after the expiry of a section 21 notice or not?

      Your previous comment seems to suggest that he may. (“However, the tenancy could be ‘brought to an end’ by the tenant leaving after the s.21 date. That would be a valid surrender. The landlord couldn’t argue otherwise, having served notice of requiring possession.“)

      That will not be academic if these amendments pass because it will still be important to be clear on when the tenancy ends.

      Certainly, I think that the current wording of the amendment is unclear and is potentially unfair to landlords.

    • On the date of possession – you are missing the point. It is not when the possession order that is actually made. The claim for possession certifies that the LL is entitled to possession at the date the claim is issued – ie that a possession order could be rightly made as of that date. And of course, it couldn’t, because of HA 1988. It makes no difference that the landlord would later become entitled to possession.

      On tenant leaving, no I am absolutely not saying that. Of course it has to be at or after the expiry of the s.21 – that is set out in what I said.

  4. Thanks for your reply, Giles.
    I don’t think the N5B form or certainly the Housing Act 1988 prevent the scenario. Let’s agree to disagree on that.

    I am quite interested in the other issue regarding the end of the tenancy after the expiry of a s.21 notice!

    On tenant leaving, no I am absolutely not saying that. Of course it has to be at or after the expiry of the s.21 – that is set out in what I said.

    I am not sure I follow. The discussion has clearly been about what happens after the expiry of the notice.

    Your previous comment was:

    However, the tenancy could be ‘brought to an end’ by the tenant leaving after the s.21 date. That would be a valid surrender. The landlord couldn’t argue otherwise, having served notice of requiring possession.

    Which I interpret as meaning that if the tenant just leaves after the expiry of the s.21 notice the tenancy will end because the landlord is obligated to accept the surrender at that point.
    If that’s the case, all landlords serving “preventive notices” are allowing tenants to leave whenever they wish after the expiry of the notice.
    That’s clearly not the consensus.

    • Romain – it is there at the start of the N5B. It is a basic common law principle that you must be entitled to what you are claiming for at the date of the claim. Not the final hearing. I would defend any such claim as an abuse of process. And probably win.

      On the s.21 point. Well, you said “Are you saying that a tenant may leave at any time he wishes, and that it will end the tenancy, after the expiry of a section 21 notice or not?” So I answered that question.

      But yes, it seems to me to be an arguable case, unless there has been some form of express agreement on the continuation of the tenancy. The landlord would have to argue that serving a s.21 which had expired meant that s/he didn’t really require possession at that date. Not an attractive prospect.

      There would obviously be something of a time limit on this. The tenant’s surrender would have to be reasonably close to the s.21 expiry date, otherwise both sides could be seen as having accepted the continuation of the tenancy.

    • Well, N5B starts with “The claimant seeks an order that the
      defendant(s) give possession of…
      “, which the landlord is entitled to as long as the conditions of s.21(1) or s.21(4) are met (strictly the wording even obliges the court to make an order). S.21(5) just stipulates what the date on the order should be ;-)

      Well, you said “Are you saying that a tenant may leave at any time he wishes, and that it will end the tenancy, after the expiry of a section 21 notice or not?” So I answered that question.

      Fair point.I badly formulated my question and it was unclear.

      Overall, although I take your point I must say that I am not fully convinced because there is no such time limit on when the landlord may then start court proceedings. To be coherent there should therefore also be no time limit on when he would have to accept the surrender.

      Anyway, thank you for taking the time to reply to my (many?) questions. Your replies are always gratefully received.

    • True, and 5. of the N5B, hmm? ‘Expired’, not ‘will expire’? You are suggesting that the LL should lie on the N5B? The point remains the same.

      The time limit on s.21 surrender would be, again, common law rules. Not a statutory issue.

    • There is no need to lie at all…

      The notice period under s.21 is 2 months.
      The original tenancy might be periodic or for a term of less than 6 months, in which case a valid notice may be served to comply with either s.21(1) or s.21(4) and to expire well before the 6 months mark.

    • Romain. You are still not getting it. It is not a statutory issue. It is basic common law. The basis for your claim has to exist at the date of issue, regardless of whether that right might have come into existence at a later hearing date. Issuing a claim for something for which you have no right at the date of issue is an abuse of process.

  5. Issuing a claim for something for which you have no right at the date of issue is an abuse of process.

    I do get that. I also realise that section 21 entitles the landlord to a possession order and even put an obligation on the court to issue one before the landlord is entitled to actual possession because the order’s effective date must be at the 6 months date.

    However, this is statute and takes precedence over preceding common law should there be a conflict, I believe.
    The statute clearly states that a possession order must be made and only gives instructions regarding the effective date.

    Now, we will probably all agree to conclude that section 21 is badly drafted, nevertheless on this issue the wording is rather clear even if unfortunate.
    Dura Lex sed Lex

    • No, the date for the possession order to take effect is ‘not earlier than 6 months’ Not ‘at the the 6 months date’. There is no obligation on the court, and it makes no difference whatsoever to the common law position.

    • There is no obligation on the court,

      Both s.21(1) and s.21(4) use “the court shall make a possession order“.

    • Yes, and beside the point.

      There is no obligation on the court to make a possession order to take effect ‘at the 6 months date’ as you said. That would be a prescription, but the Act says not to make an order to take effect earlier than 6 months, which a restriction.

    • There is no obligation on the court to make a possession order to take effect ‘at the 6 months date’ as you said

      That’s not really what I said.
      First, there is an prescription to make an order. Then second, when the order is made there is a restriction that it must not take effect earlier than the 6 months date.
      The restriction is only on the effective date.

    • But the statute doesn’t mandate it. There is nothing in the statute that would disapply the usual rule – and it would need to be express. It is perfectly possible to follow the usual rule and for the court to follow the ‘order to take effect after 6 months’ requirement. There is no conflict.

  6. Interesting debate, does it not suggest that law is badly formed and Giles you should make a representation to the Lords who keep editing it every other day.

    Better to put something hard that is not down to the interpetation of clever lawyers who confuse Judges who are easily led.

Leave a Reply (We can't offer advice on individual issues)