Legal Matters: Section 21 notice – is it valid?
Given that the Renters (Reform) Bill is progressing through Parliament right now, Section 21 is a highly contentious and topical issue.
Its abolition, while imminent in the sense that the law will change eventually, it’s likely it will still be around for some years to come: (1) because the courts are in no state to cope with the extra demand if all evictions are to require a court hearing, and (2) it is likely the new rules will only apply to new tenancies, those started after the new regulations commence.
Currently, the so called “no-fault” Section 21 eviction process is being used more intensively than ever: (1) because more landlords are deciding to exit the buy-to-let market and it’s a well-known fact that residential properties sell for higher prices with vacant possession, and (2) given the current cost-of-living crisis, more tenants are being evicted for non-payment of rent.
Various Acts of Parliament over recent years have introduced successive rules, hurdles that landlords / agents have to clear in order to make it possible for them to serve a valid Section 21 possession notice. For example, you cannot serve a valid Section 21 unless the following apply:
Also, you cannot use a Section 21 notice unless you gave your tenants copies of:
You must have given your tenants copies of these certificates and the ‘How to rent’ guide before they moved in. You must also have given your tenants a copy of the property’s Energy Performance Certificate before they rented the property.
When serving notice you should always use the latest available form 6a from the government’s website, or alternatively you can write your own Section 21 notice that includes the same information.
The Section 21 notice requires you to give your tenants at least 2 months’ notice when seeking possession. It is possible you need a longer notice period if you have a ‘contractual’ periodic tenancy.
In the case of Van-Herpen v Green & Green a dispute arose because the tenants thought the notice the landlord had served was invalid.
In the past tenants have argued in several cases that the Section 21 notice was invalid because they claimed that the landlords or their agents had not met the above criteria in some way. Given the complexity of the requirements now, it is easy for a landlord or their agent to fall foul of these rules.
This involved a claim by a landlord for possession order having served what they thought was a valid Section 21 notice, something the tenants disputed.
The tenants had taken up the tenancy at the property on the 5th of September 2018 under an Assured Shorthold Tenancy (“AST”). A new gas boiler was installed the following day by a Gas Safe registered engineer.
The engineer had explained that with a new boiler only a Building Regulations Compliance Certificate (BRCC) was required, not the regular gas safety certificate (GSC). As the boiler was under 12 months old. However, neither the BRCC or a GSC was provided to the tenants at the time or prior to the service of the Section 21 notice.
The tenants complained about the operation of the boiler and a safety inspection was carried out on the boiler on the 14th of November the same year, but again no safety record was offered to the tenants. The boiler was given another safety check on the 30th of October 2019 and only then was a safety record issued to the tenants the following day.
The landlord argued that their Section 21 notice was valid because there was no requirement to serve a BRCC or a GSR following the November inspection as the boiler was under 12 months old, and that a valid GSR had been served on the tenants after they had lived there for 12 months.
The tenants argued that the landlord was in breach of the Gas Safety Regulations and therefore the Section 21 notice was invalid.
The Deputy District Judge decided that the boiler had been inspected for the purposes of the Building Regulations Compliance Certificate (BRCC) and subsequently the Gas Safety (Installations and Use) Regulations 1998, and a record had been made after these checks.
However, as the regulations state, the tenants should have been issued with the gas safety certificates when the boiler was installed, again after the subsequent checks, and BEFORE the service of the Section 21 notice.
The Judge could not be persuaded that a check is not required until the appliance is 12 months old. This, he said, was merely a maximum time-frame in which the first check should take place.
The ruling, although of a lower court, nevertheless highlights the requirement that a GSC should be produced and served on the tenant for any checks undertaken within the first 12 months of instalment.
The case was dismissed, the landlord’s Section 21 notice was deemed invalid, and the landlord was ordered to pay all the court costs.
Landlords and agents need to be meticulous about serving the required notices on tenants prior to any serving of a Section 21 notice, and in most cases before the tenancy commences. It is not the responsibility of the tenants to request them, it is your responsibility to serve them. It is also worthwhile to remember that the method of serving of notices should follow exactly what is laid down in the tenancy agreement and that proof of service should always be obtained.
In this case, where a new boiler was installed, it would have been a wise precaution to have served both a BRCC and a GSC at the time of installation. Landlords should ensure that a Gas Safety Certificate is produced any time that checks are made and that all these records are kept and copies served on the tenants immediately and always before the service of a Section 21 notice.
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