Who does this guide apply to?

Private Renters: Y

Social Housing Renters: N* 

Lodgers: N

Squatters: N

*Some Housing Associations use Assured Shorthold Tenancies as an introductory tenancy for the first year, so it’s good to check.

Introduction

We are so used to landlords - and the power they have - that they can seem unchallengeable. They make profit from our need for a home, and using the courts and the police, can make us homeless. While the situation for tenants in the UK is dire - and looks to get worse under COVID-19 - we still have rights under the law and community power to protect us.

This guide deals with Section 21 notices. If you are having trouble with Landlord Harassment or Rent Arrears check out our other guides. For ways to fight back without going through the courts, check our Stuff Your Landlord guide.

Who does it apply to?

If you have an Assured Shorthold Tenancy, your landlord could evict you using a Section 21 order.

These are the most common type of tenancy for private renters, and usually last six or twelve months. You might also be on a rolling contract. To find out if you are on an AST go HERE.

What is Section 21?

It’s called a ‘no fault’ eviction for a reason - it can be used once your tenancy comes to an end even if you’ve been a perfectly good tenant.

If you don’t renew your contract at the end of the defined period (usually six or 12 months) you are moved onto a rolling contract. During this period you only have to give one month’s notice to leave, but your landlord can serve you with a Section 21 Notice to get you out with two months notice.

Landlords have a lot of power in this situation, but there are ways you can fight back.

How does the Coronavirus Act affect this?

A landlord usually needs to give two months notice before they can apply to court for a possession order via Section 21. Any less than this and it is not valid. The Coronavirus Act 2020 has extended this mandatory notice period to three months if the notice is given after 26 March 2020 and before 29 August  2020. From 29 August 2020 to 31 March 2021 a landlord must give six months’ notice. Unless the law changes, it will go back to two months from 1 April 2021.

If a landlord served notice before 29 August they have six months to apply to court, before the notice becomes invalid. After 29 August, they have ten months.

Evictions are currently banned until 21 Feb 2021. This means that it is illegal for a landlord, someone acting on behalf of a landlord, or Baillifs to remove you from your home. However, your landlord can still service notice, and apply to the courts for a posession order.

The legal ways to fight a Section 21

To start with, these are not legal grounds to fight a Section 21 notice:

• It’s unfair
• I’ve been the perfect tenant
• They’ve been the worst landlord
• I have cleared my arrears
• They are discriminating against me -  unless you can prove that the discrimination relates to a protected characteristic under the Equality Act 2010. This is sadly very hard to do.

If you want to fight a Section 21 the legal way, you’ll need to prove one or more of the following:

You have paid a deposit that was not protected by your landlord within 30 days.

There are only three official deposit protection schemes, contact them all to find out if yours is protected:

• www.depositprotection.com
• www.mydeposits.co.uk
• www.tenancydepositscheme.com

If your landlord returns the deposit, or the court makes an order for them to do so, they can still serve a Section 21.

If your landlord protected the deposit within 30 days but didn’t give you the prescribed information then they can’t serve a Section 21 notice until they have done so. To find out what the prescribed information is, go HERE.

Your landlord does not have a license for the property (see ‘Licencing’ below).

Improvement notices.

If the Council has served an Improvement Notice or Emergency Remedial Notice in the 6 months before your landlord served Notice then the s21 Notice is invalid.

An Improvement or Emergency Remedial Notice is a letter from the council confirming that your landlord must make repairs. You get one by contacting your Local Authority to complain that your home is unliveable. Think mould, broken heating, serious damage.

Due to brutal local authority cuts, Improvement or Emergency Remedial Notices are increasingly difficult to get (we know from experience). Due to COVID-19 local authorities are further stretched, so you may find getting one impossible.

If you complained about disrepair in writing to your landlord and they failed to respond and the council serve an Improvement or Emergency Remedial Notice before a possession order is made, then the Section 21 notice will become invalid and your landlord won’t be able to serve a valid Section 21 notice for six months.

Documents

If your tenancy (or most recent tenancy) began after 1 October 2015 and the landlord didn’t give you a How to Rent booklet or an Energy Performances Certificate before you received the Section 21 notice then it is not valid. If your property uses gas, and your landlord did not give you a Gas Safety Certificate within the last 12 months then the Section 21 notice is not valid.

Unfortunately, it can be difficult to prove that you haven’t received something! Landlords can take out a ‘Certificate of Service’ or ‘Statement of Truth’ through the courts to back up their claim - isn’t the legal system great?

Illegal fees

All extra fees relating to your tenancy are now illegal. If your tenancy (or most recent tenancy - i.e. most recent contract) began after 1 June 2019 and you were charged and not refunded any of the following, a Section 21 notice is invalid:

• A deposit of more than 5 weeks’ rent
• A holding deposit of more than 1 week’s rent
• Charges by your landlord for bills that weren’t included in your tenancy agreement (e.g Gas, Electricity, TV Licence, Council Tax)
• A fee of more than £50 for a change to the tenancy agreement or new tenancy agreement
• Interest on late rent of more than 3% over base rate

The wrong form

If your landlord used the wrong form, then the s21 Notice is invalid.

This is the current form updated for the Coronavirus Act.

Can I be served a Section 21 for going on rent strike?

While a landlord cannot use a rent strike as justification for a Section 21 notice, they also don’t need to. As we’ve said, it’s a no fault eviction so the landlord doesn’t have to justify it with the tenant’s actions. However, when planning a rent strike it’s always important to know the law around Rent Arrears. Check our Rent Arrears guide for more information.

Licensing

Across the country, all landlords need a licence from the Local Authority if they rent out an  HMO (house of multiple occupancy). Privately rented homes that are not HMOs do not require a license, but some local authorities are introducing them.

To be an HMO, a residence must pass one of the following tests:

• a building or flat in which more than one household (and three people) shares a basic amenity, such as bathroom, toilet or cooking facilities: this is known as the 'standard test' or the 'self-contained flat test'
• a building that has been converted and does not entirely consist of self-contained flats: this is known as the 'converted building test'
• a building that is declared an HMO by the local authority
• a converted block of flats where the standard of the conversion does not meet the relevant building standards and fewer than two-thirds of the flats are owner-occupied: this is known as a section 257 HMO.

Some local authorities have a selective licensing scheme in place. How these typically work is that all landlords pay several hundred pounds for a licence, and they, and their properties, are subjected to legal checks – with penalties of up to £30,000 if they don’t comply.

Selective licensing allows councils to make it compulsory for every private rented property in a specified area to have a licence. (There are two other types of landlord licensing, mandatory and additional, that only apply to people letting out houses in multiple occupation, or HMOs).

In these areas, a landlord must apply for a licence if they want to rent out a property. This means the council can check whether they are a “fit and proper person”, as well as laying down other requirements concerning the management of the property and health and safety. The schemes work in different ways, but things a landlord might be required to provide include a valid gas safety certificate, an electrical installation condition report, a copy of the tenancy agreement and evidence of landlord insurance. Typically, a licence lasts five years.

If your landlord does not have a license, it is illegal for them to serve you a Section 21 notice.