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Call of the Week: Can I still use Section 21?

Call of the week

With the government’s recent announcement of a consultation period in respect of section 21, the advice team has seen a large number of calls in relation to this matter.

This week’s call was from a member who had concerns about this announcement as they were considering issuing a section 21 notice to one of their tenants.

We confirmed to our member that they are still able to use a section 21 notice as it stands. The announcement this week was only to announce the undertaking of a consultation period of legislation which may abolish the usage of section 21. There has been no change to legislation from this announcement.

Our member called primarily as they were looking to evict their tenant as their tenant now owes them 2 months of rent arrears, and has been behaving in a violent and aggressive manner to the neighbours of the property. 

We checked that the landlord had served the Gas safety certificate, the Energy Performance Certificate and the How to Rent booklet to their tenant before the outset of the tenancy agreement, which they had done. They had also correctly protected their tenant’s deposit within 30 days using DepositGuard and had provided the prescribed information, scheme leaflet and certificate of protection of the deposit also.

We advised that this means our member can serve both section 8 and section 21 notices in this situation. They have valid reasons for grounds under section 8, or can use a section 21 notice as they have served all the correct paperwork and complied with the deposit legislation. They must then decide which notice to apply to court on the basis of.

If they choose to go down the section 8 route, we advise to use grounds 8, 10, and 11 for rent arrears, and ground 14 for anti-social behaviour. There is only a 24-hour notice period before applying to court if the section 8 includes ground 14. This route may therefore be theoretically faster than section 21, depending on the time you have to wait for a court hearing. However, there are many potential defences and judges do not have to grant possession for antisocial behaviour.

If serving a section 21 and applying to court following that, then although the notice period is 2 months long before applying to court, there is much more certainty in this process. Provided the landlord has complied with the relevant legislation, possession is always mandatory as long as the procedure is followed correctly. Many landlords prefer to choose section 21 for this reason.

We left the decision down to our member who on balance decided that section 21 seemed like the better option in their circumstances. We advised them on how to calculate the correct notice period of 2 months or more and how to serve this to their tenant and to obtain evidence of this service.

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Landlord Advice Team

Landlord Advice Team

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1 Comment

  • The private rental sector used to provide protected tenancies prior to the introduction of section 21 however the criteria was somewhat different. The protected tenants had to undertake all repairs themselves in return for the lease. Banks were reluctant to lend and the private rental sector was difficult to invest into unless the prospective landlord had 50% plus equity to invest in what was then known as a commercial mortgage.

    When Mrs T deregulated the rental market by introducing AST coupled with the section 21 and the financial deregulation allowing for Buy to Let mortgages the PRS sector proceeded to boom and thus provide a huge diversity of rental homes from a large number of small investor landlords that in part contributed to the property booms and busts experienced prior to the millennium.

    Now landlords have a duty to maintain properties under threat of punitive punishment of a years rent compensation plus legal fees under the FFH rules. I predict the banks will pull the buy to let mortgages off the market because without the right of repossession buy to let will be viewed as a risky venture.

    The only outcome will be a significant fall in future property purchases by potential landlords put off by the insecurity of tenure and probable increasesd loan to value percentages that will make the investment untenable.

    This is a difficult time for landlords still grappling with potential insolvency cased by section 24 coupled with other incentives to disinvest such as FFH the fee ban UC and the list goes on.

    Therefore the rate of landlords offloading property will increase coupled with the rate of new entrants into the Buy to Let market falling can only result in a significant reduction to the PRS sector.

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