Landlords will know that recovering possession of their property without the tenant’s cooperation requires a court order.
Landlords will also know that court orders can be obtained under the Housing Act 1988 by using either of the routes provided by section 8 or section 21.
Traditionally, the section 21 route has given landlords a degree of comfort because of the certainty it offers if the necessary notice (the section 21 Notice) is served in the correct way. Unfortunately, for landlords, this comfort has shrunk with the recent introduction of the Deregulation Act 2015 (‘the Act’).
The Act changes the way in which Assured Shorthold Tenancies (ASTs) are granted and ended. The changes are numerous, but this is a note to give some explanation of one of the more profound alterations which strengthens the tenant’s ability to resist section 21 Notices.
The new rules apply to all ASTs granted on or after 1 October 2015. For all Assured Shorthold Tenancies granted before 1 October 2015 the new rules will not apply until 1 October 2018.
Section 33 of the Deregulation Act 2015 establishes the concept that a landlord’s section 21 Notice can be cancelled if a tenant raises concerns regarding the condition of the property. More precisely, a section 21 notice is invalid if:-
- before it is given the tenant made a complaint in writing to the landlord regarding the condition of the property at the time of the complaint, and
- within 14 days beginning with the day on which the complaint was given, the landlord did not respond to the complaint or did not respond adequately.
Guidance notes suggest complaints must be reasonable and would not include a dripping tap or a broken light bulb, but that will do little to quash landlord fears that the rules give opportunity to defeat section 21 Notices with grievances which could be trivial. Unfortunately for landlords, the changes go even further:
If the tenant is dissatisfied with the landlord’s response (or lack of response) they can submit a complaint to the local authority, which in turn can inspect the property and if considered appropriate issue to the landlord a Relevant Notice requiring remedial action to be taken. In extreme case the local authority can carry out emergency repair work and charge the costs to the landlord. Either way, a section 21 notice cannot then be served until six months after the Relevant Notice has been issued.
There is some relief in that these rules do not apply to properties which are subject to mortgages granted prior to the granted of the tenancy or are ‘genuinely on the market for sale’.
Recovering possession of a property is not straightforward and hasn’t been for a long time; however, it seems now more complicated than ever, and landlords could even be persuaded to use the riskier route of section 8 – in circumstances they would not have been before. At rhw we have expertise across all property legal matters.
If you are a landlord and you wish to recover possession of your property do not hesitate to contact rhw Solicitors LLP for further advice. Email firstname.lastname@example.org or call us on Guildford 01483 302 000