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Updated Section 21 Validity flowchart

As we appear to have gone at least a week with no new law emerging that affects section 21, I have taken the risk of updating the s.21 validity flowchart.

It now includes:

  • All the various valid notice periods.
  • Tenant Fees Act effects after 1 June 2020
  • Updated position on Gas Safety Certificates after Trecarrell v Rouncefield (subject to any Supreme Court appeal)

Oh, and the links now work in the PDF.

This should hopefully now be good until 31 March 2021, when things may well change again…

 

 

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.

14 Comments

  1. John

    At about 4.59pm on Friday 18/9/2020 after Baldrick (sorry, Jenrick) has wet his pants yet again following constant hectoring from Shelter and Generation Rant, the stay will be extended by a further four weeks…………. as with everything else to do with this pandemic they are now making it up as they go along. You’ll have to revise the flowchart yet again ……….sorry.

    Reply
    • Giles Peaker

      Fortunately for me, the chart is unaffected by stays.

      Reply
  2. Elliot Kent

    Thanks for doing this Giles – the checker is really helpful to many of us advising in these complicated times.

    My colleague has pointed out a typo on the first page in that both of the arrows following “Was the section 21 notice served on or after 26 March 2020 and before 29
    August 2020” say “yes”. Presumably the arrow pointing down is meant to say “no”.

    Reply
  3. Neil

    Thank you for the flow chart. It says on the chart if the deposit is more than 5 weeks rent, then the Section 21 would be invalid. Would this apply to a periodic tenancy where you can hold more than 5 weeks rent as the deposit?

    Reply
    • Giles Peaker

      You mean where the tenancy went periodic before 1 June 2019? Or a contractual periodic where the tenancy started before 1 June 2019?

      Yes that needs clarifying. *Sighs* I’ll add that in.

      Reply
  4. Neil

    Thank you for the updated flow chart it is a great help. A general question. that I hope someone can help with: How long does the Section 21 now last for before it expires/needs to be acted upon. It used to be 6 months and this was extended to 10 months by the Government. Does this only apply to new ones served or existing notices, that were served earlier in the year?

    Reply
    • Giles Peaker

      Only to ones served on or after 29 August 2020. That is what the first 3 pages of the flow chart are partly about ;-)

      Reply
  5. Alex

    Flowchart invaluable, thank you! A quick question on licensing; property is a HMO, licensed for 5 occupants/ 5 households, but 9 occupants. Does this impact on the validity of a s 21? (s 21 served 18.6.20, licence expired 22.6.20).

    Reply
    • Giles Peaker

      So licences when s.21 served? That would make a.21 valid in itself. Whether there is an argument that breach of licence through over occupancy invalidates a s.21 – I don’t know, and the time needed to think about that puts it in to paid for advice territory, I’m afraid.

      Reply
  6. John (not the same one as above)

    One thing not dealt with at the beginning of the flowchart – “Has the ownership of the property changed hands or, if an intermediate lease is present, has the identity of that leaseholder altered since the S21 was issued”. I assume the S21 would become invalid but if an agent issues an S21 on behalf of the original landlord and then also acts for the new landlord are there any circumstances where the court might accept the original S21? If it wasn’t apparent from the from that the ownership had changed could a mistake potentially be made at this stage?

    Reply
    • Giles Peaker

      The new landlord would get the benefit of the previously served s.21 and could rely on it, I think.

      Reply
  7. Katie

    Hi Giles

    Quick Question

    On page 5 of the June 2021 S21 Flowchart it says “Has any other fee been charged by the Landlord or Agent in respect of the current tenancy”

    Does it matter that it was the Agent not the Landlord that charged the banned fee after 1st June 2019 (assume SPT started after for a tenancy for Page 6 question)?

    I note that the S21 says the Landlord but I have always understood that if an Agent does something it is treated as if the Landlord did it themselves.

    (f) where the landlord is prevented under section 17 of the Tenant Fees Act 2019. (NB No section 21 notice may be given in relation to a tenancy where a landlord has breached section 1(1) or Schedule 2 of that Act so long as all or part of the prohibited payment or holding deposit has not been repaid to the relevant person or applied to the rent or deposit with the consent of the relevant person.)

    The reason I ask is that Shelter has contradicting information on their website, on one page it says it won’t apply if it was an agent who charged the fee

    IS THIS CORRECT ?

    If so, Is there any relevant Case Law ?

    on another of their pages they do not make this assertion

    Thanks in advance

    K

    From Shelter website – click my name for the link

    “If you’ve been charged a banned fee

    Your landlord can’t give you a section 21 notice if they’ve charged a banned fee unless they refund your money. This won’t apply if it was an agent who charged the fee”

    Shelter webpage called Banned tenant fees and penalties for landlords

    “Restriction on section 21 notice

    A landlord cannot serve a section 21 notice to end an assured shorthold tenancy until any prohibited payment or unlawfully retained holding deposit has been repaid, or with the relevant person’s agreement, credited towards their rent or tenancy deposit.[11]

    Form 6A (the prescribed form for section 21 notices) has been amended to take account of the provisions of the Tenant Fees Act 2019.[12]
    There is no similar sanction restricting the service of a notice to quit on licensees or tenants who are not assured shorthold tenants.

    Reply
    • Giles Peaker

      Depends on the fee and whether the agent charged it on the landlord’s behalf. Section 17 Tenant Fees Act – the restriction on s.21 only applies to a breach of landlord prohibitions at s.1(1) Tenant Fees Act or retention of a holding deposit.

      Reply

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