Are there any exceptions where a Section 21 notice cannot be used?

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A Section 21 eviction notice, often referred to as a "no-fault eviction," is a legal tool used by landlords in England and Wales to regain possession of their property without providing a specific reason. This type of eviction is commonly used when a fixed-term tenancy agreement has ended or during a periodic tenancy. However, while Section 21 notices are a powerful tool for landlords, there are several exceptions and conditions where they cannot be used. Understanding these exceptions is crucial for both landlords and tenants to ensure that the eviction process is fair and lawful.

What is a Section 21 Notice?

A Section 21 notice is a legal notice served by a landlord to a tenant to regain possession of a property. It is called a "no-fault eviction" because the landlord does not need to prove that the tenant has done anything wrong, such as failing to pay rent or causing damage to the property. Instead, the landlord simply needs to provide the tenant with the required notice period, which is typically two months.

Section 21 notices are commonly used when a landlord wants to sell the property, move back in, or simply end the tenancy agreement. However, there are strict rules and regulations that landlords must follow when serving a Section 21 notice, and failure to comply with these rules can render the notice invalid.

Exceptions Where a Section 21 Notice Cannot Be Used

1. The Property is Not Licensed (Where Required)

In some areas, landlords are required to obtain a license for their rental property, particularly if it is a House in Multiple Occupation (HMO). If a landlord has not obtained the necessary license for the property, they cannot serve a valid Section 21 notice. This is to ensure that landlords are providing safe and suitable accommodation for their tenants.

2. The Tenant Has Made a Complaint About the Property's Condition

If a tenant has made a legitimate complaint about the condition of the property, such as issues with disrepair or health and safety concerns, and the landlord has failed to address these issues, the landlord may be prevented from serving a Section 21 notice. This is to protect tenants from retaliatory evictions, where a landlord tries to evict a tenant simply because they have raised concerns about the property.

3. The Landlord Has Not Provided the Tenant with Required Documents

Landlords are required to provide tenants with certain documents at the start of the tenancy, including:

A copy of the government's "How to Rent" guide.

A valid Energy Performance Certificate (EPC).

A valid Gas Safety Certificate (if the property has gas appliances).

If the landlord has not provided these documents to the tenant, they cannot serve a valid Section 21 notice. This ensures that tenants are fully informed about their rights and responsibilities and that the property meets certain safety standards.

4. The Deposit Has Not Been Protected in a Government-Approved Scheme

Landlords are required to protect their tenant's deposit in a government-approved tenancy deposit protection (TDP) scheme within 30 days of receiving it. If the landlord has failed to protect the deposit or has not provided the tenant with the required information about the deposit protection scheme, no fault eviction, they cannot serve a valid Section 21 notice.

5. The Section 21 Notice is Served During the Fixed Term of the Tenancy

A Section 21 notice cannot be served during the fixed term of the tenancy unless the tenancy agreement contains a break clause that allows the landlord to end the tenancy early. If the tenancy agreement does not contain a break clause, the landlord must wait until the fixed term has ended before serving a Section 21 notice.

6. The Section 21 Notice is Served Within the First Four Months of the Tenancy

A Section 21 notice cannot be served within the first four months of the tenancy. This means that if a tenant has just moved into the property, the landlord must wait at least four months before serving a Section 21 notice. This rule is in place to give tenants some security and stability in their housing situation.

7. The Property is Subject to Selective Licensing

In some areas, local authorities have introduced selective licensing schemes that require landlords to obtain a license for their rental properties. If a landlord has not obtained the necessary license for the property, they cannot serve a valid Section 21 notice. This is to ensure that landlords are providing safe and suitable accommodation for their tenants.

8. The Tenant is in a Fixed-Term Tenancy with No Break Clause

If the tenant is in a fixed-term tenancy agreement with no break clause, the landlord cannot serve section 13 notice until the fixed term has ended. This means that the landlord must wait until the end of the fixed term before they can serve a section 13 notice, even if they want to regain possession of the property earlier.

9. The Landlord Has Not Given the Tenant the Correct Notice Period

A Section 21 notice must give the tenant at least two months' notice to vacate the property. If the landlord does not provide the correct notice period, the Section 21 notice will be invalid. Additionally, the notice period must end on the last day of the tenancy period. For example, if the tenancy runs from the 1st of the month to the last day of the month, the notice period must end on the last day of the month.

10. The Landlord Has Not Used the Correct Form

Landlords must use the correct form when serving a Section 21 notice. The form used will depend on the type of tenancy agreement and when it was signed. If the landlord uses the wrong form, the Section 21 notice will be invalid.

11. The Tenant is a Victim of Domestic Abuse

In some cases, tenants who are victims of domestic abuse may be protected from eviction under a Section 21 notice. This is to ensure that victims of domestic abuse are not made homeless as a result of their situation. If a tenant is a victim of domestic abuse, they should seek legal advice to understand their rights and protections.

12. The Property is in Disrepair and the Landlord Has Failed to Make Repairs

If the property is in a state of disrepair and the landlord has failed to make necessary repairs, the tenant may be able to challenge a Section 21 notice. This is particularly relevant if the disrepair affects the tenant's health and safety. In such cases, the tenant may be able to argue that the Section 21 notice is retaliatory and therefore invalid.

13. The Landlord Has Not Complied with Retaliatory Eviction Rules

Retaliatory eviction occurs when a landlord tries to evict a tenant in response to a legitimate complaint about the property's condition. In such cases, the tenant may be protected from eviction under a Section 21 notice. If the tenant has made a complaint to the local authority about the property's condition and the local authority has served an improvement notice or emergency works notice on the landlord, the landlord cannot serve a Section 21 notice for six months.

14. The Tenant is in a Periodic Tenancy and the Landlord Has Not Given Proper Notice

If the tenant is in a periodic tenancy (a rolling tenancy with no fixed end date), the landlord must give the tenant at least two months' notice to vacate the property. However, the notice period must end on the last day of the tenancy period. For example, if the tenancy runs from the 1st of the month to the last day of the month, the notice period must end on the last day of the month. If the landlord does not give the correct notice period, the Section 21 notice will be invalid.

15. The Landlord Has Not Complied with the Tenant Fees Act 2019

Under the Tenant Fees Act 2019, landlords are prohibited from charging certain fees to tenants, such as administration fees, referencing fees, and check-out fees. If a landlord has charged a prohibited fee, they cannot serve a valid Section 21 notice until the fee has been refunded to the tenant.

Conclusion

While Section 21 notices are a common method for landlords to regain possession of their property, there are several exceptions where a Section 21 notice cannot be used. These exceptions are designed to protect tenants from unfair eviction and ensure that landlords comply with their legal obligations. Landlords must be aware of these exceptions and ensure that they follow the correct procedures when serving a Section 21 notice. Tenants, on the other hand, should be aware of their rights and seek legal advice if they believe that a Section 21 notice has been served unfairly or unlawfully.

Understanding the rules and exceptions surrounding Section 21 notices is essential for both landlords and tenants to ensure that the eviction process is fair and lawful. By following the correct procedures and being aware of the exceptions, landlords can avoid potential legal disputes, and tenants can protect themselves from unfair eviction.

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ARE THERE ANY EXCEPTIONS WHERE A SECTION 21 NOTICE CANNOT BE USED?

Are there any exceptions where a Section 21 notice cannot be used?