Has section 21 been abolished for landlords to use?

The Government’s proposal to abolish section 21 notices has caused a feeling of uncertainty amongst landlords as to how they will go about regaining possession of their property if a tenant refuses to leave after the fixed term of their tenancy agreement expires. The Government has stated that the purpose of the abolishment is an attempt to remove no fault evictions so as to provide renters with the security of having a tenancy that cannot be ended through no fault of their own. The National Landlord’s Association have specified that “over 96% of landlords would consider the leaving the market without section 21”.  

Whilst it remains uncertain whether the section 21 procedure will actually be abolished, and what additional rights or remedies may be offered to landlords in its place, landlords with current tenant difficulties remain able to utilise section 21 (subject to compliance with statutory requirements) for the time being. It is also important that landlords appreciate that the alternative procedure under section 8 of the Housing Act 1988 does act as a valuable tool to regaining possession of their property in certain circumstances – particularly where the tenant is in breach of a term of their tenancy agreement. 

A section 8 notice can be served on a tenant at any time after they have entered into a tenancy agreement. Therefore, there is no need to wait until the expiry of the fixed term of the tenancy agreement if you need to regain possession of your property by virtue of one of the grounds provided by section 8. Landlords just need to be able to demonstrate, at any point in the tenancy, that the tenant has evidently breached the terms of the tenancy agreement in accordance to the grounds set out under the Housing Act 1988. It is therefore essential to have your tenancy agreements in writing and watertight to ensure any breach can be demonstrated with solid evidence to allow the court to act in favour of the landlord.

A section 21 notice on the other hand can only be served no earlier than 4 months’ into a tenancy agreement, and cannot expire before the end of a tenancy. Therefore, the  potential abolishment should be of less concern to landlords with difficult tenants who want to terminate their tenancy agreement as soon as possible, as serving a section 21 notice is less likely to be appropriate in these circumstances.

The Government has suggested new proposals in the event that section 21 notices are to be abolished, in an attempt to reassure landlords:

• There will be a wider scope for landlords who are trying to sell their property, but are unable to do so with tenants in situ. At this time, it is not known how landlords will be assisted in this regard, but it is expected they will be given more flexibility in their attempts to regain possession of their property.
• If the abolishment is to go ahead, the Government has commented that it would not take a retrospective effect, meaning Assured Shorthold Tenancies currently in place would not immediately be affected by the new legislation and landlords with these tenancies could still rely on section 21.
• The Government has hinted at the possibility of strengthening section 8 of the Housing Act 1988 where a landlord relies on the tenant’s antisocial behaviour as a means to regain possession of their property.
• Landlords are also likely to be given greater rights enabling them to serve notice on a tenant who obstructs access to the property, preventing repairs and safety checks from being carried out.

What do landlords need to do regarding the abolishment of section 21?

Act sooner rather than later. If a dispute has arisen between you and your tenant it is best to act now, as at the present time there is uncertainty as to what extent the Government will amend section 8 and whether this will provide you with the necessary means to regain possession of your property.

As mentioned above, the section 21 procedure currently remains open to landlords looking to regain possession of their property where the fixed term of the tenancy agreement has expired. This could be a more cost effective way of terminating the tenancy agreement even if the tenant is in breach, as this rarely requires the parties to attend a hearing before an order for possession can be made.

If you need a Tenancy Agreement drafted, or you have questions about the abolishment of section 21 notices, you can contact Laura or a member of the team on 023 8071 7412 or email laurablakemore@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.