Evicting a tenant using the Section 21 procedure

As a landlord, there are certain legal requirements that need to be complied with in order to be able to successfully evict a tenant using the Section 21 procedure. These requirements are listed below.

The deposit must be protected in a protected scheme such as the DPS or TDS and the landlord must serve the prescribed information on the tenant within 30 days of receipt of the deposit. If the deposit is not protected, it must be repaid in full to the tenant prior to serving a Section 21 Notice.

The landlord must serve the tenant with a copy of the Energy Performance Certificate at the outset of the tenancy.

The landlord must serve the tenant with a copy of the How to Rent in England and Wales Guide which can be found here. (put a link on here)

The landlord must serve the tenant with a copy of the Gas Safety Certificate prior to occupation at the commencement of the tenancy.

Since the Deregulation Act 2015 came into force, the requirement to serve the Gas Safety Certificate before the tenancy commences has been causing an issue for landlords who are looking to evict their tenant using the Section 21 procedure. Non-compliance with this requirement allows the tenant to forward a defence to contest a Possession Claim against them. While service of the EPC and How to Rent Guide on the tenant can be done at any point between the commencement of the tenancy and the service of a Section 21 Notice, if a landlord does not serve a Gas Safety Certificate before the tenancy commences, this breach cannot be rectified by service of the Gas Safety Certificate at a later date. As the Section 21 route is seen as a “non-fault” method of evicting a tenant, breaching the requirement to provide Gas Safety Certificate prior to entering into the tenancy can mean that landlords are effectively trapped into providing their tenant with a lifetime tenancy, unless they are able to evict them under specific grounds in a Section 8 Notice (i.e. rent arrears, anti-social behaviour).

In the case of Caridon Property v Monty Shooltz (2018) the landlord, Caridon Property, failed to obtain a possession order as a result of this breach. The Judge ruled that the Section 21 Notice was invalid as the landlord hadn’t provided a copy of the Gas Safety Certificate to the tenant at the outset of the tenancy. Although this case was heard in the County Court, it was heard before a Circuit Judge and as a result the County Courts in London have decided that this Judgment should be binding in all London Courts and the case is being used nationwide. The landlord, along with the Residential Landlord’s Association and Landlord Action believe that the Government should reconsider the Monty Shooltz ruling, as the outcome of this ruling cannot have been Parliament’s intention when the legislation regarding the Gas Safety Certificate was introduced.

The Monty Shooltz ruling has recently been referred to in the Courts of Appeal in Trecarrell House v Rouncefield. In this case, a Deputy District Judge awarded the landlord a possession order but the tenant appealed this decision based on the fact that the Gas Safety Certificate had been served after the tenancy had already commenced, not at the outset, meaning the Section 21 Notice should not be valid. The Circuit Judge hearing the tenant’s appeal, HHJ Carr have gave permission to appeal. The landlord is currently appealing this decision, with the support of the Residential Landlords Association, and the hearing of the appeal will take place in January 2020.

The Courts of Appeal will need to decide whether non-compliance with the requirement to serve a GSC at the outset of a tenancy is a breach that can be rectified at a later date. They will need to consider whether the Monty Schooltz ruling is breach under European Convention on Human Rights to peaceful enjoyment of the landlord’s property. The decision will likely have a big impact on landlords and tenants in future County Court possession cases and is an important point of law which will ultimately affect the future of possession proceedings in the private rented sector.

For now, Landlords should ensure that they comply fully with the requirement to serve and obtain confirmation of receipt from tenant, the correct documentation at the commencement of the tenancy.

For further advice please contact either Laura Thompson on 01228 587418 or Rob Winder on 01768 800855.