I’ve had a go at updating the section 21 validity flow chart. It now incorporates the effect of the Tenant Fees Act 2019 (which turned out to be more complicated to do than I thought – I think it works, but constructive criticism welcome), and updates notes on EPCs and gas safety certificates.
It will need revising again for 1 June 2020, due to the transitional provisions of the Tenant Fees Act, alas.
The new flowchart is in word form (with working hyperlinks) or pdf form (with broken hyperlinks), and also available on the flowchart page.
[Edit – slight tweak to TFA page on 4 September 2019]
Thank you for that Giles. What a lot of routes that lead to “Section 21 invalid”! Anyone would think the Government wanted to trip landlords up.
I think there is yet another dead end for landlords and it’s a rather subtle trap: Did the landlord take a holding deposit? If so, was it applied towards the first payment of rent or the tenancy deposit? If so, did the tenant or the person who paid the holding deposit consent to it being so applied? If not the holding deposit must be repaid to the tenant or to the person who paid it because it is a prohibited payment. (The tenant then immediately owes the landlord the same amount in rent arrears!)
That is the effect of paragraphs 3(a) and 6 of Schedule 2 to the TFA. I suspect that fewer than 1% of holding deposits are returned when a tenancy is entered into. Why would a landlord do so? Why would he return it before receiving the balance of the completion monies and if he didn’t do so tenants would rightly object to having to pay the full amount with no credit being given for the holding deposit.
I fear this will catch many landlords out unless they get (and can prove they got) the tenant’s consent. It is conceivable the courts will hold that not objecting to the holding deposit being offset against the rent/tenancy deposit amounts to consent. However, that renders the words “with the consent of the person by whom it was paid” superfluous.
Ian – I think you are right. I did it as shorthand in the flowchart – holding deposit refunded against rent – but you are right on the consent point. I will try to squeeze that in in a revision later on.
Looks great. However will you be doing a flow chart for tenancies that started before 1 October 2015 that haven’t been renewed. Or is that just being cheeky?
That is relatively easy.
All that applies is:
1. Deposit protection/prescribed information
2. (Probably) use form 6A (not certain, but can’t hurt)
3. Time restrictions on s.21 being useable for a possession claim.
4. HMO licensing
5. Retaliatory eviction provisions
Hi Giles
The section 21 flowchart is an invaluable resource. Thanks for all your hard work on this.
I have raised the following query with our excellent Expert Advice Team in Birmingham but thought that I would also share this issue with you in light of the updates to the flowchart.
This is something that I only became aware of the other day.
It seems that EPC’s were introduced in 2007 and that an EPC only lasts for ten years and then should be renewed. We are therefore liable to see more and more cases of out of date EPCs.
A recent client of mine approached the City Council with a section 21 notice and was advised that it was invalid because the EPC was “no longer valid”.
So the question is this. If the EPC is valid when it is issued to the tenant (this will usually be at the start of the tenancy) but then becomes invalid (out of date) before the section 21 is issued, then is there a defence to the section 21 notice?
I haven’t seen any cases on this. I checked the Energy Performance of Buildings Regulations 2012 and the relevant subsection states;
(5) The relevant person must ensure that a valid energy performance certificate has been given free of charge to the person who ultimately becomes the buyer or tenant.
So the legislation doesn’t say anything about what happens when the EPC goes out of date.
Your thoughts on this would be appreciated.
Can’t see it falling out of date as affecting the position on a s.21 notice. As long as the tenant was given one, which was valid at the time.
Brilliant effort Giles, very very valuable resource thanks a lot for making this and sharing. I particularly like the inclusion of the grey areas, very useful
please may I add a note or revision
page 2 near the bottom of the page “If this the case, it is also not clear whether provision ” should this read “If this is the case”
page 9 top 2 boxes should there be closing bracket “(for prescribed information see ”
looking forward to hearing your thoughts on the appeal case, great blog
thanks James
Thanks. I’ll make those corrections in the next version.
Find myself needing to issue s21. The flow chart and very useful comments have really helped me through the minefield