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Section 21 Defences Advisers' Checklist

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Section 21 Defences Advisers' Checklist Section 21 defences Advisers’ checklist Pre- April From Page: Potential defence: April 2007- 1st 2007* 2015 October 2015** The s.21 doesn’t give at least 2 months’ 1 ✓ ✓ ✓ notice. The notice was not in the prescribed form. 1 ✓ The tenancy was periodic from the start 2 ✓ ✓ and the notice does not expire on the last day of a period of the tenancy. The notice hadn’t expired when the claim 2 ✓ ✓ ✓ was issued. The notice was served within the first four 2 ✓ months of the tenancy. The notice seeks to end the tenancy within 2 ✓ ✓ ✓ the first six months of the initial tenancy. The notice expires within the fixed term. 3 ✓ ✓ ✓ When proceedings were issued the notice 3 ✓ had expired more than six months previously (or, if the notice must give more than two months’, notice, more than four months previously). There is an Equality Act defence. 4 ✓ ✓ ✓ There is an estoppel defence. 4 ✓ ✓ ✓ The landlord had not served before 4 ✓ commencement of the tenancy: - Gas safety certificate; - Energy performance certificate; The landlord has not served the most 6 ✓ recent ‘How to rent’ guide when the tenancy was granted or a new fixed term agreed. This is a ‘revenge eviction’ within the 7 ✓ meaning of the Deregulation Act 2015. The property requires HMO/selective 7 ✓ ✓ ✓ scheme licensing and was not licenced or temporarily exempt, and no application was underway, when the s.21 was served. At the time of service there was a deposit 8 ✓ ✓ ✓ that was not held in an authorised scheme. The landlord had not protected the deposit 8 ✓ and, before the s.21 was served, had neither (i) returned the deposit; nor (ii) protected it late. The tenancy became periodic after 6th April 8 ✓ 2007 and the landlord had neither protected the deposit by 23rd June 2015, nor returned it. The landlord failed to protect the 8 ✓ ✓ deposit/comply with the initial requirements within 30 days of receiving it, and had not returned it when the s.21 was served. The landlord protected the deposit more 9 ✓ ✓ than 30 days after receiving it, and there has been no new tenancy since, and the deposit has not been returned. The landlord had not served the ‘prescribed 9 ✓ ✓ ✓ information’ relating to the deposit when the s.21 was served, including: - Scheme administrator’s full contact details. - Any leaflet the administrator uses. - Payment/repayment procedure. - Procedure where either party is not contactable. - Dispute procedure. - Dispute resolution facilities. - Deposit amount. - Tenancy address. - Landlord’s full contact details. - Tenant’s full contact details. - Relevant person’s details. - When the landlord may retain the deposit. - Signed certificate of accuracy. The ‘prescribed information’ had not been 12 ✓ ✓ ✓ served on a ‘relevant person’ (who paid the deposit on behalf of the tenant). The landlord failed to properly return the 12 ✓ ✓ deposit. The landlord returned the deposit, but not 13 ✓ ✓ to the ‘relevant person’. The landlord had returned the deposit but 13 ✓ ✓ ✓ checked the wrong box/not made that clear in the claim form. The claim has been brought by the wrong 13 ✓ ✓ ✓ claimant. The client’s instructions don’t exactly match 14 ✓ ✓ ✓ the claim form. The statement of truth is not signed by the 14 ✓ ✓ ✓ landlord or their solicitor. * There is no substantive difference between pre-2007 and post-2007 tenancies, but the date is relevant to the deposit protection rules: this column applies where a deposit was received before 4th April 2007 and there has been no subsequent replacement tenancy since then. ** The post-2015 defences apply to new tenancies granted after 1st October 2015 and will apply to all tenancies existing on 1st October 2018 but (until October 2018) they do not apply to statutory periodic tenancies that have arisen after a periodic or fixed-term tenancy that was originally granted before 1st October 2015. Disclaimer: this document is intended as a guide to the issues that can arise in section 21 possession claims, but it should not be taken to be authoritative and it is not legal advice. If you are at risk of losing your home you should seek specialist legal advice (legal aid is still available for many tenants). The guide is believed to be accurate at May 2018. Section 21 defences Advisers’ guide Introduction The frequent and complicated amendments to the legislation, and the litigation that inevitably follows, are fertile ground for technical defences to possession claims. Identifying a technical defence will often mean, at the very least, that the case will be listed for a hearing, which secures valuable time for the tenant even if the claim eventually succeeds. In this guide we hope to compile and explain the technical defences currently available (although there are bound to be others). When faced with a tribunal or landlord who derides a defence as ‘technical’ there are a number of arguments to bear in mind: - In Section 21 claims the only defences available to most tenants are technical. Parliament has obliged landlords to meet stringent conditions when depriving a tenant of their home with ‘no fault’ on the tenant’s part. - Technical defences are in the spirit of the legislation. The Deregulation Act regime has created more technicalities, not fewer, and the Housing Act 2004 did the same. - The Court of Appeal has described Section 21 as: “a robust machinery. It depends upon district judges rigorously considering the documents which have been filed. Some replies may be little more than a plea, however genuine, for mercy. But if, on the face of the reply, a matter has been raised which, if true, might arguably raise a defence; or if the documents filed by the claimant might arguably disclose a defect in his claim, then the district judge must necessarily be ‘not satisfied’ within the meaning of [the rules]” (Manel v Memon (2001) 33 HLR 24 – quoted in the commentary to CPR 55.16 in the White Book). The notice All s.21 notices must give at least two calendar months’ notice from the date of receipt. The Deregulation Act brought in a prescribed form of s.21 notice (a copy is at the end of this guide). Any differences between the prescribed form and the notice served on the tenant should be brought to the court’s attention. However, as with all statutory notices, 1 the court might accept a section 21 notice that is in a form substantially to the same effect as the prescribed form (see, for example, Ravenseft Properties Ltd v Hall [2001] EWCA Civ 2034; or Tadema Holdings v Ferguson (2000) 32 HLR 866, which concerned notices under s.13 of the Housing Act 1988). It is worth looking closely at the notice because the original statutory instrument (the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulation 2015, S.I. 2015/1646) prescribed a form that had errors in it, and some landlords might use that form by mistake. For tenancies that were granted before 1st October 2015 there is no prescribed form: the notice must be in writing and meet the straightforward requirements of s.21(4)(b) or s.21(1)(b). Section 21(4ZA) has abolished the old requirement that notices had to expire on the last day of a period of a tenancy (or contain a proviso that it expires ‘at the end of the period of your tenancy which will end next after the expiration of two months from the service upon you of this notice’). However, that requirement still applies to contractual periodic tenancies that were granted before 1st October 2015 (Section 41(2) of the Deregulation Act 2015). The notice must have expired when the claim was issued. It is a straightforward requirement that the tenant must have two full months’ notice before the landlord is entitled to start proceedings (Lower Street Properties Ltd v Jones (1996) HLR 887). For many years it has been common practice for landlords to serve notices at the start of the tenancy. That is no longer possible for post-2015 tenancies: s.21(4B) precludes service of a notice within the first four months of a tenancy. However, that restriction does not apply to tenancies that have become statutory periodic tenancies, or to ‘replacement tenancies’ (defined in s.21(7): tenancies where the landlord and tenant are the same as under the previous tenancy, and the premises are also the same or substantially the same). What that means in effect is that this ‘first four months rule’ only applies to the first tenancy: if a tenant remains in occupation after the first fixed term has expired, s.21(4A) does not apply. The law is designed to ensure that new ASTs run for a minimum period of six months. For post-2015 tenancies that takes effect through the s.21(4B) (above). For older tenancies, s.21(5) prohibits the court from making an order that takes effect any earlier 2 than six months after the start of an initial tenancy. This is not a defence per se because there is nothing necessarily wrong with a s.21 that expires within six months of an original tenancy, but it is important to ensure that the order for possession is dated correctly and (if it is not) apply to the court to set it aside and/or vary the date. The section 21 notice cannot expire during the fixed term of a tenancy – section 21 obliges the court to make an order on the ‘expiry or termination’ of an AST (Gloucestershire HA v Phelps May 2003 Legal Action 35, Gloucester County Court. Note, however, that many ASTs have ‘break clauses’ – effectively a 12-month tenancy with a break clause is really a six-month fixed term tenancy dressed up as a 12-month one.
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