- November 1, 2016
- By Eleanor Solomon
- 0 comments
I have received a s21 notice and my landlord wants to evict me. Can I do anything about it?
If you have received a section 21 notice it means that the landlord has taken the first step towards evicting you. They then have to start court proceedings, win their case and obtain a possession order and then instruct court bailiffs to evict you.
You do not have to have done anything wrong to be evicted using s21 procedure. There is no requirement to be in rent arrears or to have breached the tenancy agreement in any other way. As long as your landlord has done everything correctly the court will grant them a possession order. However, new legislation has made the process increasing complicated and there is a good chance that your landlord has not done everything correctly. This is a very brief overview of some of the defences you might have to an s21 possession claim. This is a starting point but it is a very complex area and you should seek advice if you think you have a defence.
It is very important to note that if your landlord uses the accelerated possession procedure and you do not send a defence to court in response to your landlord’s claim then you may not be given a court hearing and a possession order may be made against you in your absence. It is, therefore, crucial to respond in time to court papers, ideally with the benefit of legal representation. If you are told that there is a court hearing it is important to attend.
If you do not leave the property before your landlord sends their claim to court, but do not defend then you will be ordered to pay your landlord’s fixed legal costs of a few hundred pounds. If you defend the claim and lose you could be ordered to pay your landlord’s full legal costs of many thousands of pounds.
The notice and time limits
You are likely to have a defence if:
- There is not a two month period between the date you receive the notice and the date it says you have to leave by
- The s21 notice says you have to leave within the fixed term of the tenancy. For example, if you sign a tenancy agreement for a year with no break clause, your landlord can send you an s21 notice after 8 months which expires the day after the tenancy ends. If they send you an s21 notice after 6 months which expires after 8 months, before the term of the tenancy is up, then this notice will not be valid.
- If your tenancy started on or after 1st October 2015 then the s21 notice must be in this form. If it looks different to this but has all the same information in then the court may let your landlord off, but you should certainly bring it to the court’s attention
- If your tenancy started on or after 1st October 2015 then your landlord must start court proceedings within 6 months of sending you the notice. If they don’t then they will have to start again and send you a new notice.
If your tenancy started on or after 1st October 2015 then your landlord can’t rely on a 21 notice given to you in the first four months of the tenancy.
If your landlord took a deposit from you and did not protect it in an authorised deposit protection scheme or return it to you in full before sending you the s21 notice then you are very likely to have a defence. Likewise, if you have not received specific information from your landlord about where your deposit is held before getting the s21 notice (called ‘prescribed information’) and your deposit has not been returned then you will have a defence. If someone paid the deposit on your behalf to the landlord or agent then the prescribed information also needs to have been sent to them.
If your property is an HMO which is not licensed you may have a defence. See this video for an explanation of whether your property is an HMO.
Special provisions for tenancies which began after 1st October 2015
If your tenancy began after 1st October 2015 you are likely to have a defence if:
- Your landlord or agent didn’t give you an energy performance certificate and gas safety certificate before they gave you the s21 notice.
- Your landlord didn’t give you a ‘How to Rent Guide’, or the correct version of that guide, before giving you the s21 notice.
- Your landlord gave you an s21 notice within 6 months of the council giving them an improvement notice or emergency remedial action notice about the poor condition of the property.
- You complain about conditions in your property to your landlord in writing and don’t receive an adequate response within 14 days, then the council serve an improvement notice or emergency remedial action notice (even if the council do this after you receive the s21 notice, as long as it is before the possession order is made by the court).
Even if you have one of the above defences, it will only buy you time until your landlord gets it right, you will have to leave eventually. It can be crucial to buy some time, as it can be very hard to find a new affordable home in the private sector, especially if you receive welfare benefits. If you receive an s21 notice and think you might have a defence contact Anthony Gold and we will see if we can help.