The inevitable demise of section 21 notices?

28th August 2019 Commercial Litigation

Last month, the Government published a consultation seeking input on proposals to abolish no-fault evictions under section 21 of the Housing Act 1988 and remove the assured shorthold tenancy regime.

The consultation period is relatively short; it last for twelve weeks with responses due by 11:45 pm on 12 October 2019. This may be indicative of the Government’s desire to start implementing the proposals sooner, rather than later.

So what are the proposed changes? To highlight a few:

1. The consultation advances the removal of the ability of landlords to require possession by serving notice under section 21.

2. With section 21 removed, all future tenancies will therefore be assured, either as fixed-term assured tenancies or contractual periodic assured tenancies.

3. Landlords will only be able to evict a tenant under an assured tenancy if the landlord can establish grounds under Schedule 2 of the Housing Act 1988.

4. The Government recognised that “.. the abolition of section 21 as a means to end tenancies will need to be underpinned by enhanced section 8 grounds and a simpler, faster process through the courts„ The consultation therefore proposes amending or supplementing certain of the Schedule 2 grounds, such as:

4.1 Widening the scope of ground 1 to remove the requirement for a landlord to have previously lived at the property in order to gain possession to use the property as their own home and also allowing for possession if family members wish to use the property as their home.

4.2 Re-structuring ground 8 so that it becomes a mandatory ground for possession if the tenant still has one month’s (or over) worth of rent arrears outstanding by the time of the hearing. If the arrears are less than one month at the hearing, the ground is discretionary however, it will become a mandatory ground if a the landlord can prove a pattern of behaviour that shows the tenant has built up arrears and paid these down on three previous occasions.

The suggested changes will only apply to properties in England and the proposals will relate to all tenancies granted after the changes are put into effect.

There are a number of unanswered questions arising from the consultation, such as the implications of a landlord’s failure to comply with the requirements for landlords to provide the tenant with an EPC, gas safety certificate etc. at the outset of the tenancy. Currently, the consequences of a failure, for example, to provide a gas safety certificate at the outset of the tenancy is to restrict a landlord’s ability to service a section 21 notice. There is ambiguity as to how non-compliance will impact on the service of a section 8 notice.

The fact is, however, that the Government appears set on following through with the proposed reforms, which landlords will quickly need to become au fait with when granting any tenancy after the implementation of the changes.

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Marc Yaffe is a Head of Business Development located in Manchesterin our Management BoardSports Law departments

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