What does the future hold for Section 21 Notices?

By Caroline Hume

Partner – Head of Residential Property

17 January 2020

Article Insights

Early in 2019, the Government announced that it intended to abolish Section 21 Notices.  This effectively means an end to Assured Shorthold Tenancies as all future tenancies will be assured – either as fixed-term or contractual periodic arrangements. It is proposed that the minimum fixed term will increase from the current six months to up to two years.

The Government Consultation published in July 2019 has taken place (it closed in October 2019) and the results are awaited.  The Queen’s Speech in December 2019 included a reference to a Bill to abolish Section 21 Possession claims.

What is a Section 21 Notice?

A Section 21 notice provides an assured shorthold tenant with a minimum of two-months’ notice to leave a property.  Under the current Section 21 regime, no reason for the eviction needs to be given ie “no-fault eviction”.  Having said that, Section 21 Notices are commonly given to tenants when there are rent arrears as many landlords argue that it is an easier process than having to argue in court about the reasons for the eviction.

For a tenant, this means that the threat of eviction is just one step away, at any time, without any explanation is necessary.  Provided the Section 21 Notice is valid, there is no recourse available to a tenant.  The landlord just needs to tick the relevant boxes on the Claim Form and obtain a possession order without even having to attend before a District Judge.

The introduction of the Deregulation Act 2015

The introduction of the Deregulation Act 2015 has made the Section 21 Procedure more complex for landlords as there are now many hoops to get through before a landlord can serve a Section 21 Notice (Gas Safety Certificates, Energy Performance Certificates, How To Rent Guide, HMO Licence, securing the tenant’s deposit, compliance with the recent ban on letting fees) – the list is endless. Recent cases have held that where a landlord has failed to comply with the provisions of the Deregulation Act (namely failing to provide a Gas Safety Certificate at the start of the tenancy) he is unable to rely on the no-fault basis for termination of the tenancy ever, and will have to rely on another ground for possession (ie rent arrears).

Section 8 Procedure

The Government has proposed that the Section 8 procedure (where a reason for the eviction must be given) will be amended by adding three new grounds for possession.  The first two grounds are mandatory (so the Court must make a possession order if the ground is proven) are where a landlord wishes to sell or move a family member into the property.  The third new ground (which is discretionary) is where the tenant prevents compliance with legal safety standards.

This means that landlords will still be able to end tenancies where they have a legitimate reason to do so.  These proposed “new grounds” will be in addition to the existing grounds which allow landlords to evict tenants who don’t pay the rent or commit anti-social behaviour.

Landlords need to have confidence that they will be able to regain their property quickly in cases where the tenant has broken the terms of their tenancy agreement or where the landlord has other reasonable grounds.  This can only happen if there is a simpler and faster eviction process through the court system.  The current court system does not lend itself to a speedy process.  The Government needs to overhaul the court system before bringing in the proposed changes.

Whilst there is a need to provide more secure long term accommodation to vulnerable tenants there will be a concern amongst landlords that the new proposals will prevent them from regaining possession of their property as and when they require it.  Without these assurances, landlords may be prompted to leave the market, which would not help tenants.

In December 2017, the Scottish government abolished the equivalent of England’s Section 21 and introduced new, indefinite tenancies for private tenants (Private Residential Tenancy).   The general overview is that the new regime is working well provides tenants with a degree of security that they will not be evicted on short notice.

It is important that tenants in England, do not have to worry about not being able to find another decent and affordable home when they are asked to leave their current property. The constant threat of eviction is central to the insecurity of many assured shorthold tenants.  Therefore the proposal to abolish the Section 21 Notice will bring peace of mind to the four million people living in the private rented sector and hopefully be the start of solving the housing crisis in England.

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