The s21 process for evicting tenants began to be perceived as unfair to them after the 2008 recession. In my personal view this was understandable as under this eviction process, a) tenants did not have to be at fault and b) if landlords were at fault they didn’t have to prove it. It was perceived that rather than deal with tenant complaints they would prefer to evict but this left the new tenant with exactly the same problems. So, when the former Liberal Democrat MP Sara Teather raised concerns in Parliament the term ‘retaliatory evictions’ was coined. This led to s33 (preventing retaliatory evictions) and s34 (further exemptions to s33) of the Deregulation Act 2015 being created to deal with this area. Both sections came into effect for tenancies created after 1st October 2015 (and apply only in England) but from October 2018 this will apply to all AST’s regardless of when they were created.
Specifically under s33 of the Act if a tenant makes a written report to the landlord about a repair needing to be carried out, the landlord needs to write to the tenant within 14 days stating a) what is going to be done and b) a time-frame for doing the work.
If the landlord fails to do this the tenant can report the situation to the local authority Environmental Health. If they serve a notice a result of their inspection it will be one of the following:
- A notice served under s11 of the Housing Act 2004 (improvement notices relating to category 1 hazards: duty of authority to serve notice);
- A notice served under s12 of that Act (improvement notices relating to category 2 hazards: power of authority to serve notice), or
- A notice served under s40(7) of that Act (emergency remedial action);
This will then prevent the landlord from serving a s21 Notice for 6 months and it will only be able to be served again from the date of the service of the notice.
If the notice is served then suspended, an earlier section 21 notice will not be invalidated. Hazard notices are designed to address health and safety issues and there are 29 areas which the Act covers specifically under the Housing Health and Safety Ratings System.
This six month restriction does not apply if the hazard notice has been revoked, quashed or reversed under the provisions of the 2004 Act.
The Deregulation Act 2015 also prevents landlords from serving s21 Notices if it has not dealt with requirements under repairs, Energy Performance Certificates, gas safety and breaching the new need to give information to tenants about the rights and responsibilities of both parties
The restrictions on serving a section 21 notice in section 33 do not apply where:
- The tenant has caused the hazard;
- The property is ‘genuinely’ for sale on the open market and not for sale to a related or associated person (for a full definition refer to ss34(3) – (5) of the Act and s178 of the Housing Act 1996 (meaning of associated person);
- The landlord is a private registered social housing provider (otherwise known as a housing association);
- A mortgagee requires possession to exercise a power of sale.