The Deregulation Act 2015 introduced new measures intended to prevent “retaliatory evictions” for any assured shorthold tenancy granted on or after 1 October 2015 including a renewal tenancy. From 1 October 2018, the provisions will apply to all assured shorthold tenancies including existing ones.
The legislation is in essence in two parts. Firstly, a section 21 notice cannot be served within a certain time period after some notice has been served under the Housing Health and Safety Rating System (‘HHSRS’) (discussed earlier in Chapter 2). Secondly, if a tenant asks for works to be completed, a section 21 notice served in retaliation to that request may be rendered invalid.
Where a relevant ‘HHSRS notice’ has been issued By a local authority, no section 21 notice may be served in relation to the dwelling-house within six months from the day of service of the HHSRS notice.
A relevant ‘HHSRS notice’ is-
an improvement notice, or an emergency remedial action notice.
The starting point is that once a HHSRS notice has been served, no section 21 notice may be given within six months. This is the case even if any works contained in the HHSRS notice are completed within the given time-scales. However, there are a number of exclusions where, despite the six month prohibition, a section 21 notice may nevertheless be given at a time of less than six months from the HHSRS notice. These exclusions are-
if the improvement notice was served in error and as a result is revoked. In this case, a section 21 notice may be served after the notice has been revoked (assuming that is within six months otherwise the s.21 may have been served anyway) if the notice is appealed on a number of grounds to the First-tier Tribunal and as a result the notice is quashed or revoked, a section 21 notice may be served after the tribunal’s decision (assuming the decision is within six months).
Where a HHSRS notice has been served but the works specified in the notice was caused by the tenant being in breach of “the duty to use the dwelling-house in a tenant-like manner” (or some express term to the same effect), the six month rule does not apply.
This would be a risky defence though because the starting position is that no section 21 can be served within six months from the HHSRS notice. To argue that the landlord was entitled to serve a section 21 notice during the six month prohibition period on the grounds that the tenant caused the works would have to be backed up by substantial proof.
Finally, the six month rule does not apply if at the time the section 21 notice is given, the dwelling-house is genuinely on the market for sale (for which see later).
A tenant moves into a property and after 12 months the extractor fan in the bathroom breaks. The tenant contacts the local authority (without first contacting the landlord) and the local authority inspect. The fan is found to be broken and damp and mould is accumulating as a result.
The local authority decide it is a category 2 hazard (the lower of the hazards) and issue an improvement notice on the landlord to fix the fan within 28 days. The notice is served on 28 November.
The landlord may not serve a section 21 notice for six months (at least 29 May using our example), even if the fan is promptly fixed in November.
The second part to the prevention of retaliatory eviction rules relates to a tenant asking the landlord for some works to be completed and the landlord then serves a section 21 notice in retaliation. In order for a section 21 notice to be invalid, there is a strict set of rules that must be followed in a specific order.
A section 21 notice served in England will be invalid and any possession claim struck out where ALL of the following applies (and in the following order)-
Step 1: before the section 21 notice was given, the tenant made a complaint in writing to the landlord (or to the landlord’s agent) regarding the condition of the dwelling-house. And
Step 2: at the time of the complaint, the landlord did not provide a response to the complaint within 14 days, or provided a response to the complaint that was not an adequate response, or gave a section 21 notice in relation to the dwellinghouse following the complaint.
Step 3: the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord.
Step 4: the local authority served a relevant HHSRS notice in relation to the dwelling-house in response to the complaint.
Step 5: if the section 21 notice was not given before the tenant’s complaint to the local housing authority, it was given before the service of the relevant notice.
It is important to stress that the steps must be followed throughout and if an order for possession is made before step 4 (service of a HHSRS notice by the local authority) even where the section 21 may have been given after a written request for repairs, the notice will nonetheless be held to be valid.
In step 4, a relevant HHSRS notice is the same as defined earlier under the six month prohibition part (improvement notice or emergency remedial action notice).
Where a section 21 has not yet been served and the local authority serve a HHSRS notice (including in step 4), the six month prohibition on serving a section 21 discussed earlier applies.
In step 2, the landlord is required to respond in some way and if does so, in an adequate manner, the steps cease to move to the next and as such any section 21 notice served afterwards would be valid. An adequate response would be- carrying out the works being asked for within 14 days, or if the works cannot be completed within 14 days, the landlord provides in writing, a description of the action that the landlord proposes to take to address the complaint, and sets out a reasonable timescale within which that action will be taken. This reply must be in writing and be within 14 days of the tenants complaint.
A complaint by a tenant may refer to not just parts of the dwelling physically occupied by the tenant but also to any common parts. But, only if the landlord has a controlling interest in the common parts in question, and the condition of those common parts is such as to affect the tenant’s enjoyment of the dwelling-house or of any common parts which the tenant is entitled to use.
Once possession has been ordered by the court, it must not be set aside on the ground that a relevant HHSRS notice was served after the order for possession was made.
The section 21 notice will always be valid even if all steps have been completed if the HHSRS notice served by the local authority under step 5 solely contains works that have become necessary due to a breach by the tenant of the duty to use the dwelling-house in a tenant-like manner (or an express term of the tenancy to the same effect).
Further, a section 21 notice will be valid despite steps 1 to 5 having been satisfied if the “dwelling-house is genuinely on the market for sale.” (see later for definition of genuinely for sale).
Example 1 A tenant writes to the landlord about a faulty fan in the bathroom. The landlord fixes the fan on day 21 after the complaint. the following day, the landlord serves a section 21 notice on the tenant.
A possession order is applied for through the court and a hearing is called. On the day of the hearing, the tenant had not previously contacted the local authority, nor has a HHSRS notice been served by the council.
In this example, the section 21 notice is valid and possession will be ordered because steps 3 (contact local authority), 4 (council serve HHSRS notice) and 5 (section 21 notice served after complaint but before HHSRS notice) shown above have not been satisfied so the retaliatory eviction prohibition is not triggered.
Example 2 A tenant writes to the landlord about a loose handrail on the stairs which is promptly fixed (within a day or two).
A month later and without first contacting the landlord, the boiler breaks and the tenant contacts the local authority. The local authority contact the landlord to give 24 hours notice that they are going to inspect about the boiler (which they must do by law). On that same day before the inspection, the landlord hand delivers a section 21 notice to the property.
The following day the council inspect and a further two days later serve an improvement notice on the landlord seeking that the boiler be repaired. The landlord promptly repairs the boiler (within a day or two).
Two months later after expiry of the section 21 notice, the landlord applies for a possession order which is defended by the tenant on the basis that they made a written request for repairs and an improvement notice was served.
In this example, the section 21 is nonetheless valid because of a couple of reasons:
Example 3 A tenant moves into a property and after six months the roof starts leaking. The tenant sends the landlord an email asking that the roof be fixed.
After a month the landlord replies to the tenant apologising for the delay as he was in Spain on holiday for the last four weeks. In the landlord’s reply he confirms the roof would be fixed within 28 days. Alongside the reply, the landlord also serves a section 21 notice.
The tenant, not happy with the reply, contacts the local authority who, within a week, inspect and issue an improvement notice seeking that the roof be fixed. The landlord is given 6 weeks to repair the roof.
After the roof is fixed, the landlord applies for possession which is defended under the retaliatory eviction provisions.
The section 21 notice will be held invalid and the landlords claim struck out because of step 2 and the failure of the landlord to carry out the repair within 14 days or to provide a written response within 14 days. Although the landlord arguably replied adequately (with a description of the works and a reasonable time-frame), the reply needed to be within 14 days.
What’s more, step 2 was further satisfied because the landlord served a section 21 notice following the complaint.
Going through the steps:
Where a property is genuinely for sale at the time the section 21 notice is given, neither the six month prohibition after a HHSRS notice has been served nor the retaliatory rules apply.
If a property is genuinely on the market for sale, is not defined in the legislation and it appears to be for the court to decide – each case being considered on it’s own merits. However, what is NOT genuinely for sale is helpfully defined (although not conclusively).
A dwelling-house is NOT genuinely on the market for sale if, in particular, the landlord intends to sell the landlord’s interest in the dwelling-house to— a person associated with the landlord, a business partner of the landlord, a person associated with a business partner of the landlord, or a business partner of a person associated with the landlord.
A business partner and persons associated are also further defined in the legislation.
To clarify, the legislation is not defining the above as being a conclusive list of what is NOT genuinely for sale. The court may consider a house for sale at £500,000 when three agents have valued the same house as £250,000 to be not genuinely for sale. The crucial word is “genuinely”. Putting a house on the market on the same day as serving a section 21 and then taking it off the market the following day is not likely to be “genuine”.
What’s more, the legislation does not prohibit the sale of a property to a business partner or associate of the landlord – it’s just that the retaliatory eviction rules will continue to apply under both old and new landlord.
Finally, the property must be genuinely on the market at the time the section 21 is served. It is no use to put it on the market say a couple of days before a possession hearing. That will not avoid the retaliatory eviction rules.