Our thanks to Yezdan Izzet from Bolt Burdon for both taking part in this webinar in February 2018 and for answering the many questions that were raised. Her answers are below.
If you fail to include a copy of the section 21 notice as an attachment to accelerated proceedings but the tenant confirms in his defence that it was served and is only seeking an extension for possession on grounds of exceptional hardship (which extension the landlord consents to - and confirms as much to the court), will the proceedings still be valid?
Usually the Court will determine accelerated possession proceedings on paper, without the need for a hearing. However, in certain circumstances a hearing may be necessary. I would suspect that where the section 21 notice has been omitted that the Court may make directions requiring a copy of the section 21 notice before giving judgement.
Can Form 6A be served where the tenancy commenced before 1 October 2015?
Sections 33-41 of the Deregulation Act 2015, and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 came into force on 1st October 2015 and introduced changes to the section 21 requirements which include the new prescribed Form 6A.
You can serve a Form 6A for tenancies granted prior to 1st October 2015. However, this is not compulsory.
From 1st October 2018 the changes will apply to all Assured Shorthold Tenancies. It is important to note that this relates to English tenancies only.
What if I pay back the deposit that I have not protected, can I serve a section 21 notice even though I have not given the prescribed information due to not protecting the deposit?
In short, Yes.
Any deposit taken in connection with an Assured Shorthold Tenancy since 6th April 2007 must be registered with an authorised tenancy deposit scheme, and the tenant must be provided with prescribed information within 30 days of receipt of deposit (sections 213(3) and 213(6) of the Housing Act 2004). The sanctions against the landlord for non-compliance are:
- The landlord will be prevented from serving a section 21 notice to recover possession of the property; and
- The landlord may be liable to pay a fine to the tenant between once and three times the deposit amount.
Provided that the rent deposit has been returned you can serve a section 21 notice. The deposit must be returned before serving the serving a section 21 notice otherwise that notice will be invalid.
Are landlords allowed to serve gas safety docs etc at a later date if they have failed to do so at the start of tenancy?
Pursuant to sections 34-38 of the Deregulation Act 2015 a landlord cannot serve a valid section 21 notice if it hasn’t complied with its statutory requirements including, amongst other things, where the landlord has not provided the tenant with an energy performance certificate, gas safety certificate; and the Department for Communities and Local Government’s publication entitled ‘How to rent: the checklist for renting in England’.
Accordingly, the landlord must provide the tenant with those documents before it can serve a valid section 21 notice even if this is after the commencement of the tenancy.
If the tenancy began in 2004 and there was a deposit but it was done by the agent, how can this be returned before serving section 21 notice? I don’t know the amount and the agency is no longer active.
As a result of section 31 of the Deregulation Act 2015 deposits taken before 6th April 2007 which became periodic before that date must be either protected or returned before a section 21 notice can be served. Although there is no financial penalty on the landlord you will not be able to serve a section 21 notice.
It is prudent to establish what the position is in relation to the rent deposit before serving a section 21 notice otherwise this could invalidate your notice. In some instances, we have advised landlords to register a sum equivalent to the deposit amount in order to be able to serve a section 21 notice.
Are the new Section 21 rules in for Wales yet?
No. The Deregulation Act 2015 deals with English property only.
Welsh housing law is being substantially reformed. The changes are being introduced largely as a result of the Renting Homes (Wales) Act 2016. The Act received Royal Assent on 18th January 2016 but is not yet fully in force.
Can a section 8 notice stand, i.e. 2 weeks’ notice, if the term has not come to an end?
If a tenant is in breach of the terms of the tenancy agreement during the fixed term of the tenancy, a landlord may be able to serve a section 8 notice, relying upon one of the grounds specified in Schedule 2 of the Housing Act 1988 provided that there is provision in the tenancy agreement allowing the landlord to terminate the tenancy as a result of the breach. Usually a forfeiture or re-entry provision will be sufficient but this will depend on the wording of the tenancy agreement.
Do you recommend issuing possession claim online or on papers for rent arrears?
Yes. You can use the Possession Claims Online procedure.
In section 8 proceedings, can an argument be raised by a tenant about failure to register a rent deposit on time, allow a tenant to offset against the rent arrears as at the time the section 8 notice is issued?
It is possible that the tenant could make a counterclaim for payment of a penalty as a result of the landlord’s failure to comply with the deposit requirements and this may be off-set against rent due to the landlord.
If the tenant deposit scheme has not been complied with at all (i.e. the deposit was taken but never deposited), is it better to proceed with eviction using the section 8 route?
Provided that the landlord is able to rely upon the grounds specified in Schedule 2 of the Housing Act 1988, in particular the mandatory grounds, then the landlord may wish to serve a section 8 notice instead of a section 21 notice.
We usually advise clients to return the deposit and serve a section 21 notice – but this depends on the facts of each case.
If a property is repossessed by the lender, and the landlord failed to protect the tenant’s deposits, can the lender still evict tenants using section 21?
The effect of mortgage repossession on a tenant will depend on whether or not the tenancy agreement is binding on the lender. There are a number of factors the court will take into account e.g. whether or not the tenancy pre-dated the mortgage, was it a buy-to-let mortgage etc.
The Department for Communities and Local Government “Guidance to Mortgage Repossessions (Protection of Tenants etc) Act 2010” sets out guidance for lenders and tenants. The guidance states that there is “no role for the lender” in relation to tenancy deposit issues.
Does failing to register deposit (or late registration) hinder service of a section 8 notice?
Failure to comply with the initial requirements relating to deposit protection will not prevent a landlord from serving a section 8 notice on the tenant where there has been a breach of the terms of the tenancy.
However, the tenant may bring a counterclaim against the landlord in respect of the landlord’s failure to register and request a penalty which could affect the landlord’s claim for possession.
Does the new protocol on debt claims ever apply to rent arrears under section 8?
Pre-action Protocol for Debt Claims came into force on 1st October 217. The Protocol applies to any business (including sole traders and public bodies) claiming payment of a debt from an individual (including a sole trader). Although the Protocol does not replace the section 8 process it is not yet certain as to what extent this will apply to rent arrears due under an Assured Shorthold Tenancy Agreement.
The purpose of the Protocol is to
- Encourage early engagement and communication between the parties
- Enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution ... procedure
- Encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue)
- Support the efficient management of proceedings that cannot be avoided
The Protocol states that a creditor should send a Letter of Claim to the debtor before proceedings are started and states that if the debtor does not reply to the letter within 30 days, the creditor may start court proceedings.
In order to be able to serve a section 8 notice, relying upon mandatory ground 8 of Schedule 2 of the Housing Act 1988 the landlord must show that as of the date of service of the section 8 notice, and at the date of the possession hearing:
- if rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid
- if rent is payable monthly, at least two months’ rent is unpaid
- if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears
- if rent is payable yearly, at least three months’ rent is more than three months in arrears
As such, usually by the time a landlord can serve a section 8 notice there must be at least 8 weeks’ rent due. What we expect to see is that more landlords will serve their tenants with a formal Letter of Claim pursuant to the Protocol as soon as the debt falls due and require payment within 30 days. If payment is not made and a response is not received within the 30 day period, the landlord can serve a section 8 notice, as normal, once the arrears get to the requisite minimum amount.
You mentioned a new section 8 notice. When did this come into force? I have heard only of a new section 21 notice?
There is a prescribed form which was updated to take into account the new statutory grounds for possession.
If we are taking over management of a property where the deposit is not protected, if the landlord pays us the deposit and we draw up a new agreement can we serve a successful section 21?
If the deposit has not been protected within 30 days of receipt you would not be able to serve a section 21 notice until the deposit is returned.
With section 21, if the EPC has not been provided at the outset, but was provided before the section 21 notice was served, would that still act as a defence?
No. See above, as per the query relating to compliance in relation to a gas safety certificate.
Is a section 21 still valid if landlord served an out-dated "how to rent" booklet?
Not if it was the current booklet at the time of the grant of the tenancy.
If an out of date booklet was served the landlord may wish to send the current booklet to the tenant before serving the section 21 notice to avoid any issues.
Can a tenant raise as a defence to a section 8 based possession claim, that the landlord has failed to do his part in order to allow tenant to claim appropriate housing benefit thus reducing the outstanding arrears
Possibly, this will largely depend on the facts of the particular case.