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Is this the death of s.21 ‘no fault’ evictions?

2 July 2019 • Melanie Dirom

Following Theresa may’s surprise announcement at CIH Housing 2019 last week, Croftons’ Head of Housing Management, Melanie Dirom, takes a look at what Section 21 does, and the implications should this much-used legal tool be repealed.

Let’s rewind to April 2019, and the Government’s announcement that they intended to “put an end to no-fault evictions by repealing Section 21 Housing Act 1988”. The Government said it was time for a “generational change” and that “tenants and landlords favoured different lengths of tenancy depending on their circumstances”.

The mood from the Government took me by surprise (nearly as much as George Osborne’s rent cut), and though you can never take anything for granted in the housing sector, I half thought that this would never see the light of day. Surely, I thought, the Government had other things on their hands…

Is it really happening?

Now fast forward to 26 June 2019 and the Prime Minister tells a packed auditorium at the CIH Housing conference that this proposal is going ahead and the repeal will happen. Maybe it’s time I picked myself up from my chair and looked at the possible reality and implication of this!

Section 21 is not new, having been on our statute books since 1988, and to my mind, it forms the very back bone of renting as we know it.

Section 21 enables a landlord to gain possession of a property (let on an Assured Shorthold Tenancy) providing at least two months written notice has been given. It matters not if the occupants have been model tenants and have paid their rent on time; it is the landlord’s absolute legal right.

The current legislation is clear

If the landlord wants the tenancy to end, a notice can be served. The landlord does not need to prove a “ground”, no need to prove that it is “reasonable” nor “proportionate”, and in 90% of these claims, the parties don’t even attend court as the judicial consideration is done by a judge on the papers using the accelerated possession procedure. The legislation is clear: if the landlord has fulfilled the Section 21 requirements, it’s a possession order.

There are, of course, some protections in place for tenants under the current regime, and these have increased over time with the implementation of the Deregulation Act 2015, such as protection of any deposit paid, service of a valid EPC and gas safety certificate, and provision of a How to Rent booklet (if the landlord is not an RP), but the legislation is still very heavily in the landlord’s favour.

It is very much accepted that if the landlord seeks possession and the paper work is all correct, a possession order will be granted.

Implications for landlords

So with the strong indication that Section 21 will go, where will it leave landlords who use Section 21 in their housing management armoury?

In December 2017, Scotland repealed their legislative equivalent of Section 21 but did introduce a further mandatory ground for possession of landlord returning home should the property be needed as the landlord’s home. If the repeal does go through I would expect a similar provision to be introduced here, with grounds also covering when a landlord wants to sell the property. But, as with any legislative amendment, the devil will be in the detail.

Check your probationary terms

I will be advising my Registered Provider clients that they need to look at their starter/probationary terms to ensure that such measures can be implemented and enforced through ‘other’ grounds as the service of a Section 21 notice during the probationary period is well-established practice of dealing with problematic tenancies before the security of tenure sets in.

By abolishing the Section 21 regime the use of accelerated possession proceedings will also become redundant and I fear the already overburdened County Court system will undoubtedly have to list more court hearings to deal with claims that would previously have been dealt with by Section 21. There have long been calls to establish a simplified court process for property and housing matters but until this happens (if it ever does), expect delays.

It’s good news too

As with any change, we will adapt if we need to – and it’s not all bad news. As James Brokenshire (Secretary of State for Housing… at time of writing) said in April 2019 “the right approach is to provide long term security for tenants and abolish Section 21” and any long term viability of a tenancy has to be the aim of the game.

Those who represent tenants are welcoming this news. Shelter announced that the repeal would safeguard 11 million renters in their homes and enable them to set down roots in their communities, and Crisis had already heralded the use of Section 21 as being the biggest trigger to homelessness.

Watch and wait

But Theresa May is in her final weeks of leadership, and Brokenshire may not survive any Cabinet reshuffle, so until it happens and a repeal actually goes through, we continue with business as normal. We will, however, continue to watch this space, and wait…

Need legal support?

If you need help and advice on any aspect of tenancy enforcement or your wider housing management, please get in touch with Melanie. Click here for her contact details.




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