What makes a Section 21 Notice Invalid?

What is a Section 21 notice?

A Section 21 notice, often informally referred to as a “no fault” eviction notice or notice to quit, is issued by a landlord to a tenant when the landlord seeks to regain possession of their property without the tenant having violated the tenancy agreement or accrued unpaid rent. Typical reasons for issuing a Section 21 notice include the landlord’s desire to sell the property or their need to occupy it themselves.

The Legal Requirements of a Section 21 Notice

Ensuring compliance with legal guidelines when issuing a Section 21 notice is crucial, as any deviation may render the notice invalid. The notice should be hand-delivered or sent through the mail to the tenant’s address. It must include the tenant’s full name, the property’s address, and the specific date by which the tenant is required to vacate the property.

What makes a Section 21 notice invalid?

A Section 21 notice can be deemed invalid for several reasons, mainly revolving around non-compliance with legal requirements and procedural errors. Here are some common factors that can invalidate such a notice:

• Incorrect Form or Details: Using an outdated form or providing incorrect information about the property, the tenant, or the required notice period can invalidate the notice.
• Non-compliance with Deposit Protection: Failure to protect the tenant’s deposit in a government-approved scheme or failure to provide the tenant with the prescribed information regarding the deposit protection can lead to the invalidation of the notice.
• Licencing Issues: If the property is required to be licenced (e.g., Houses in Multiple Occupation—HMO), but is not properly licenced, a Section 21 notice may be invalid.
• Failure to Provide Required Documents: Landlords must provide tenants with certain documents, such as a valid Energy Performance Certificate (EPC), a current gas safety certificate (if applicable), and the government’s ‘How to Rent’ guide, before issuing a Section 21 notice.
• Repairs and Maintenance Issues: If the notice is served after a tenant has complained about the condition of the property and the local authority has issued an improvement notice or notice of emergency remedial action, the notice may be invalid.
• Retaliatory Eviction: If a tenant has recently made a legitimate complaint about the property’s condition and the landlord issues a Section 21 notice in response, it may be seen as a retaliatory eviction, which can invalidate the notice.
• Timing of the Notice: Issuing the notice before the tenant has been in the property for a minimum period, or during the fixed term of the tenancy without a specific clause allowing for this, can also invalidate the notice.
• Non-compliance with Tenancy Deposit Rules: If the landlord has not returned any unlawfully withheld deposit amounts before issuing the Section 21 notice, it can be invalidated.

To avoid invalidating a Section 21 notice, landlords should ensure they adhere to all relevant laws and regulations, handle all tenant deposits correctly, and keep records of compliance with these requirements.

Consequences of an invalid Section 21 Notice

Consulting with a tenant eviction solicitor is advisable. An invalid Section 21 notice requires reissuing a new notice, thereby extending the tenant’s departure by an additional two months. Such delays are often only discovered when seeking a possession order, after the initial two-month notice period has elapsed.

These delays can cause significant issues, particularly if you have already secured a buyer for the property or need to reclaim it for personal use. Therefore, it’s crucial to ensure that the notice is correctly served the first time to avoid such complications.