Prevention of Section 21 - Retaliatory Eviction Bill

What is Prevention of Service of Section 21

• If the Tenant complains of disrepair No section 21 may be relied upon until – the breach is remedied or deemed unproven

• No Section 21 Notice may be served until after fourth month of commencement of any tenancy agreement [new or renewal]. NOR may any section 21 be relied upon that was issued more than 6 months from court application date for an order for possession- This means serving a Section 21 at beginning of tenancy would be invalid

• No Energy Performance Certificate nor Gas Safety Certificate the Section 21 invalid

• The key point is this is open to abuse – all the tenant has to do is make a spurious complaint pre service of Section 21 and this will delay eviction or invalidate eviction. Even a false claim will have to be investigated by the council ; this could take months and a HHSRS inspection will probably be required

• A Section 21 [as the case with a Section 8 Notice] would become a prescribed form, which would be good thing as would protect landlords from silly mistakes

• It is cited The Bill’s provisions would not apply retrospectively.  For avoidance of doubt if passed the bill would ONLY apply to tenancies commenced after starting date of the act - so in theory incumbent problematic tenants could not abuse this legislation; but we have no doubt this will be subject to an appeal claiming contrary to a tenant human rights they are being treated disproportionately] this is a basis of qualification for legal aid entitlement.  

• Dont worry – should this bill be passed it shall not be become law until receives Royal Assent so before this time PIMS would produce an updated eviction guide for members

The policy rationale for the Bill is:

• To prevent tenants from feeling unable to complain about poor property conditions because they fear eviction. The Bill should also encourage landlords to keep their property in a decent condition and to comply with all legal obligations placed upon them, in order not to lose their right to rely on section 21.

On 11 September 2014 Communities Minister, Stephen Williams, said that the Government would support the Bill:

Preventing retaliatory evictions (clause 1)

• Notices served or complaints made in relation to the common parts of a dwelling would also form a 'relevant notice' but only where the landlord has an estate or interest in those common parts, and where their condition affects the tenant's enjoyment of the premises.

• The prohibition on service of a section 21 notice within 6 months of a local authority serving a 'relevant notice' would not apply where:
  • the relevant notice has been revoked (as a result of being served in error); or
  • the notice has been quashed under paragraph 15 of Schedule 1 to the 2004 Act; or
  • an authority's refusal to revoke the notice has been reversed under paragraph 18 of Schedule 1 to the 2004 Act; or 10
• There are other situations that apply

2.4 Time limits – section 21 notices and proceedings (clause 4)

• It would prohibit the service of a section 21 notice in England within four months of the beginning of the tenancy. Where a replacement tenancy is issued (i.e. at the end of a fixed-term) it would not be possible to serve a section 21 notice until four months after the start of the replacement tenancy. 11
  • The restriction on service of a section 21 notice would not apply where a periodic tenancy arises following the end of a fixed-term.
  • The clause also provides that proceedings for an order for possession may not be brought later than six months from the date of service of a notice under section 21(1) or section 21(4) of the Housing Act 1988. This would place a specific time limit on the period within which a landlord must start possession proceedings after serving a section 21 notice.
    It is not unusual for landlords to serve a section 21 notice at the very beginning of a fixed-term tenancy. This practice could undermine the provisions in clauses 1 and 2 of the Bill which, for example, invalidate a section 21 notice where the tenant has made a relevant complaint beforehand. The provisions in clause 4 would prohibit this practice.

  Compliance with prescribed legal requirements (clause 5)

  Clause 5 would give the Secretary of State power to prescribe requirements (in England) relating to the condition of dwellings (including energy performance) and the health and safety of the occupants which, were a landlord to be in breach, would prevent them from serving a section 21 notice until the requirement was complied with.

  Prescribed form of section 21 notices (clause 6)

   
  The Secretary of State would gain a regulation making power to prescribe the form of a section 21 notice in England. Regulations made under clauses 4 and 5 would be subject to the negative procedure clause 7).

  
  Apportionment of rent (clause 8)