Carter Jonas
Carter Jonas

Detail holds the key to success with Section 21

Plenty of focus has been placed on Section 21 notices, their detail, and the need to serve any possession notice in the correct format in order to be effective.

In fact the detail is so fine that the first draft of the official notice was erroneous and needed correction as the deadline passed for its introduction on October 1.

Possibly more important than the detail is the devilish part – keeping on top of paperwork in relation to maintenance as well as the maintenance itself.

Much of the change was brought about through the Deregulation Bill passed into law at the last possible moment before the General Election.

At the same time as the Bill received Royal Assent, the run-up to the election was also bringing a great deal of talk about retaliatory evictions. Campaigners were concerned that landlords were able to evict tenants under existing law without giving explanation and could easily do so if the tenant complained about the conditions of the property they rent.

As a result, once a tenant has made a complaint the landlord is prevented from retaliatory eviction under section 33 of the Deregulation Act 2015. This makes it imperative that landlords stay on top of their legal obligations for maintenance and that they attend to repairs before the tenant can head for the local authority’s office and seek the serving of an Improvement Notice.

There is no room for complacency in this respect and any tenant who is beginning to appear problematic for other reasons should not be given the key to remaining in their tenancy through a slack approach to maintenance.

Whenever you receive a complaint in writing from a tenant regarding the condition of the property you must within 14 days give an “adequate” response in writing. If you default, a Section 21 notice cannot be served. The legislation refers to the complaint being in writing but possibly all complaints, no matter how minor, should be clearly logged and receive a response. 

The section also provides that if the tenant is unhappy with your response he can complain to the local authority who may then serve a notice requiring works to be undertaken. If such notice is served then no valid section 21 notice may be served for 6 months from the date of that notice.

All the provisions provide that Section 21 notices cannot be served after the actual complaint either by the tenant or service of the notice by the local authority. This should not affect earlier Section 21 notices or situations where the tenant has complained to the local authority but they have not inspected either by the time of the service of the notice or the court proceedings.

Private landlords have limited protection. If the tenant can be shown as the cause of the poor condition, either from positively damaging the property or omission, there may be protection but the burden of proof is on the landlord. If it can be genuinely shown the property is on the market for sale there is also an exemption.

Good processes regarding complaints handling, and a clear understanding by tenants as to who is responsible for accepting complaints, is now more important than ever in residential lettings property management.

As a reminder, the law also stipulates that at the start of the tenancy, the landlord or letting agent must give the tenant details of where and how the deposit is held and copies of both the EPC and, where applicable, the gas safety certificate and the Government’s eight page booklet “How to Rent: the checklist for renting in England” which is only available electronically and has to be printed at the landlord’s expense to be handed over each time. It is important to keep evidence of the serving of this paperwork.

Details of what must be served are contained in the The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 which can be found by clicking here.

Good practice will no doubt dictate that at the time of serving the correct Section 21 notice the rest of the documentation should be re-served so that there can be no question of the tenant having received it.

Lisa SimonMARLA

Partner - Head of National Residential Lettings

Lisa is the head of Residential Lettings at Carter Jonas; she is based in our Knightsbridge and Chelsea office where she started her career and advises on all aspects of letting and managing propert...

Read more

0207 518 3234