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From 1 October 2015, sections 33 and 34 of the Deregulation Act 2015 began in England.
These sections bring into force provisions titled “preventing retaliatory eviction”.
In summary, the rules prevent a section 21 (no fault two months notice) from being served (or render a section 21 invalid) in some circumstances regarding Housing Health and Safety Rating System (HHSRS) hazards in a property.
Subject to the next paragraph, none of the rules discussed in this article apply to an assured shorthold tenancy granted before 1 October 2015 nor to any statutory periodic tenancy arising on or after 1 October 2015 where the original tenancy was granted before 1 October 2015. Therefore, subject to the next paragraph, these rules only apply to a tenancy granted on or after 1 October 2015, including a renewal granted on or after that date in England.
From 1 October 2018, the rules discussed in this article will apply to ALL assured shorthold tenancies in England, including any granted before 1 October 2015 (or went statutory periodic).
The HHSRS is a means by which a local authority may inspect any residential premises (including owner-occupied) and identify hazards that might be prejudicial to a person’s health or safety (there are 29 hazards in total). Each hazard achieves a score based on the likelihood of harm being caused and how severe that harm might be.
A category one hazard is the most serious, and the local authority must take some action.
A category two hazard has a lower score, and the council may take some action.
The possible courses of action available include:
This is not a complete analysis of the HHSRS or possible courses of action. Please see our HHSRS series of articles for more detailed information.
The new legislation is, in essence, in two parts.
Firstly, a section 21 notice cannot be served within a certain period after some notice has been served under HHSRS.
Secondly, if a tenant asks for works to be completed, a section 21 notice served in retaliation to that request for jobs may be rendered invalid.
Where a relevant HHSRS notice has been issued concerning a dwelling in England, no section 21 notice may be served concerning the dwelling-house within six months from the day of service of the HHSRS notice or, if the HHSRS notice has been suspended, within six months from when the suspension ends.
A relevant HHSRS notice is any-
The starting point is that once an HHSRS notice has been served, no section 21 notice may be given within six months. This is the case even if any works contained in the HHSRS notice are completed within the given time scale.
However, there are several exclusions where, despite the six-month prohibition, a section 21 notice may be given at a time of fewer than six months from the HHSRS notice.
These exclusions are-
If the improvement notice was served in error and, as a result, the whole improvement notice is revoked under section 16 Housing Act 2004, a section 21 notice may be done after the notice has been revoked. Suppose the landlord asks the local authority to withdraw an improvement notice because it was served in error, and the local authority refuses. In that case, the landlord can appeal to a tribunal about the refusal. If, on appeal, the local authority’s decision is reversed (so the notice is revoked), a section 21 notice can be served after the tribunal annuls the improvement notice.
Suppose an appeal against the improvement notice on other available grounds (such as works not necessary etc.) is successful at the tribunal, and the notice is quashed. In that case, a section 21 notice may be served after the tribunal has quashed it.
Suppose an appeal is made to the tribunal against the local authority taking emergency remedial action, which reverses the notice. In that case, a section 21 notice may be served after the reversal by the tribunal.
Where an HHSRS notice has been served, but the works specified in the notice were caused by the tenant being in breach of “the duty to use the dwelling-house in a tenant-like manner” (or some express term to the same effect), the six-month rule does not apply. This would be a risky defence, though, because the starting position is that no section 21 can be served within six months from the HHSRS notice, and this is even if the works contained in the notice are carried out promptly. To argue that the landlord was entitled to serve a section 21 notice during the six-month prohibition period because the tenant caused the works would have to be backed up by substantial proof.
Finally, the six-month rule does not apply if, at the time the section 21 notice is given, the dwelling-house is genuinely on the market for sale. See later for “genuinely on the market for sale”.
Example 1
A tenant moves into a property, and after 12 months, the extractor fan in the bathroom breaks. The tenant contacts the local authority (without first contacting the landlord), and the local authority inspects. The fan is found to be broken and damp, and mould is accumulating as a result. The local authority decides it is a category two hazard (the lower of the hazards) and issues an improvement notice to the landlord to fix the fan within 28 days.
The notice is served on 28 November.
The landlord may not serve a section 21 notice for six months (at least 29 May using our example), even if the fan is promptly fixed in November.
Example 2
A tenant has been residing for some time and contacted the local authority about dampness on a north-facing bedroom wall.
No contact was made with the landlord first.
The council inspect and found a leaking gutter.
They issued an improvement notice on 10 January, seeking the gutter to be fixed within three months.
On 17 January (a week after the council served the HHSRS notice), the tenant left voluntarily with the landlord’s consent.
The landlord re-lets the property immediately, and a new tenant moves in on 18 January.
The landlord is now unable to serve a section 21 notice to this new tenant for five months and three weeks (6 months after the improvement notice was served from 10 January in this example) because the reference in section 33(1) Deregulation Act is to a section 21 notice “in relation to an assured shorthold tenancy of the dwelling-house”. The reference is not to any specific tenant.
The second part of the prevention of retaliatory eviction rules relates to a tenant asking the landlord for some works to be completed. The landlord then serves a section 21 notice in retaliation. For a section 21 notice to be invalid, there is a strict set of rules that must be followed in a specific order.
A section 21 notice served in England will be invalid, and any possession claim struck out where ALL of the following applies (and in the following order)-
Step 1: before the section 21 notice was given, the tenant made a complaint in writing to the landlord (or to the landlord’s agent 5) regarding the condition of the dwelling-house. And
Step 2: at the time of the complaint, the landlord
And
Step 3: the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord,
And
Step 4: the relevant local housing authority served an applicable HHSRS notice about the dwelling-house in response to the complaint,
And
Step 5: if the section 21 notice was not given before the tenant complained to the local housing authority, it was given before the service of the relevant notice.
It is important to stress that the steps must be followed throughout and if an order for possession is made before step 4 (service of an HHSRS notice by the local authority), even where section 21 may have been given after a written request for repairs, the notice will nonetheless be held to be valid.
In step 4, a relevant HHSRS notice is the same as defined earlier under the six-month prohibition part (improvement notice or emergency remedial action notice). Where a section 21 has not yet been served, and the local authority serves an HHSRS notice (including in step 4), the six-month prohibition on serving a section 21 discussed earlier applies.
In step 2, the landlord is required to respond in some way, and if they do, in an adequate manner, the steps cease to move to the next, and as such, any section 21 notice served afterwards would be valid.
An adequate response would be-
A complaint by a tenant may refer to not just parts of the dwelling physically occupied by the tenant but also to any common parts. But, only if the landlord has a controlling interest in the common parts in question, and the condition of those common parts affects the tenant’s enjoyment of the dwelling-house or of any common parts the tenant is entitled to use.
Once the court has ordered possession, it must not be set aside on the ground that a relevant HHSRS notice was served after the order for possession was made.
The section 21 notice will always be valid even if all steps have been completed if the HHSRS notice served by the local authority under step 5 solely contains works that have become necessary due to a breach by the tenant of the duty to use the dwelling-house in a tenant-like manner (or an express term of the tenancy to the same effect).
Further, a section 21 notice will be valid despite steps 1 to 5 having been satisfied if the “dwelling-house is genuinely on the market for sale.” (see later for definition of genuinely for sale). Also, these provisions do not apply where the operation of the relevant HHSRS notice has been suspended.
Example 1
A tenant writes to the landlord about a faulty fan in the bathroom.
The landlord fixes the fan on day 21 after the complaint. The following day, the landlord serves a section 21 notice on the tenant.
A possession order is applied through the court, and a hearing is called.
On the day of the hearing, the tenant had not previously contacted the local authority, nor had the council served an HHSRS notice.
In this example, the section 21 notice is valid, and possession will be ordered because steps 3 (contact local authority), 4 (council serve HHSRS notice), and 5 (section 21 notice served after complaint but before HHSRS notice) shown above have not been satisfied, so the retaliatory eviction prohibition is not triggered.
Example 2
A tenant writes to the landlord about a loose handrail on the stairs, which is promptly fixed (within a day or two). A month later, without first contacting the landlord, the boiler breaks, and the tenant contacts the local authority. The local authority contacts the landlord to give 24 hours notice that they will inspect the boiler (which they must do by law).
The landlord hand-delivered a section 21 notice to the property the day before the inspection. The following day the council inspected and, a further two days later, served an improvement notice on the landlord seeking that the boiler is repaired. The landlord promptly fixes the boiler (within a day or two).
Two months later, after the expiry of the section 21 notice, the landlord applies for a possession order which the tenant defends on the basis that they made a written request for repairs and an improvement notice was served. In this example, section 21 is nonetheless valid for two reasons: (1) After the original complaint about the handrail and the landlord’s adequate response, and the handrail was fixed within 14 days.
As a result, step 2 is not satisfied, and all five steps must be completed for the notice to be invalid. (2) Further, when the tenant went to the local authority, the complaint was not “about the same or substantially the same, subject matter as the complaint to the landlord”. In our example, the complaint to the landlord was about a handrail, but the complaint to the local authority was about a boiler. As a result, step 3 was not satisfied.
Example 3
A tenant moves into a property, and the roof starts leaking after six months. The tenant sends the landlord an email asking that the roof be fixed. After a month, the landlord replied to the tenant apologising for the delay as he had been in Spain on holiday for the last four weeks. In the landlord’s reply, he confirmed the roof would be fixed within 28 days. Alongside the response, the landlord also serves a section 21 notice.
Not happy with the reply, the tenant contacted the local authority, who, within a week, inspected and issued an improvement notice seeking that the roof be fixed. The landlord is given six weeks to repair the roof. The landlord notices a fatal error by the council in the HHSRS notice and appeals. His appeal is successful, and the notice is revoked.
After the notice is revoked and the roof is fixed, the landlord applies for possession defended under the retaliatory eviction provisions.
Despite the HHSRS notice being revoked and the roof being repaired, the section 21 notice is nonetheless invalid, and the landlord’s claim is struck out.
This is primarily because of step 2 and the failure of the landlord to carry out the repair within 14 days or to provide a written response within 14 days.
Although the landlord arguably replied adequately (with a description of the works and a reasonable time frame), the reply needed to be within 14 days. Furthermore, step 2 was further satisfied because the landlord served a section 21 notice following the complaint.
The fact that the HHSRS notice was revoked on appeal is irrelevant because even an invalid HHSRS notice served as part of the steps would render section 21 invalid. The reduction in time when section 21 can be served only applies where section 21 is served after an HHSRS notice and after that HHSRS notice has been revoked or quashed.
Going through the steps:
Step 1 was satisfied because the tenant wrote a complaint.
Step 2 was satisfied because the landlord (a) failed to respond within 14 days and (b) served a section 21 following the complaint. (Any one of these would have rendered the step satisfied).
Step 3 was satisfied because the tenant complained to the local authority about the same complaint as to the landlord. (Note: there is no time limit from the written complaint to when the tenant must go to the local authority).
Step 4 was satisfied because a relevant notice (improvement notice) was served by the local authority (before an order for possession had been obtained).
And finally, step 5 was satisfied because the section 21 notice was not served before the written complaint in step 1 and was served before the HHSRS notice.
Note: had the landlord waited for the HHSRS notice to be served instead of serving section 21 “following the complaint”, service would have been barred for six months or until the notice had been revoked if sooner so it would not have helped.
Example 4
Six months into a tenancy, the landlord serves a section 21 notice. A week later, the tenant gives the landlord a written request for some repairs, which the landlord ignores.
After 14 days, the tenant contacts the local authority about those repairs, and then the local authority inspects and issues an improvement notice. The landlord is given six months to complete the works as they were relatively minor. The landlord commences possession proceedings but has not completed any repairs because the landlord will refurbish the property when the tenant leaves. The tenant defends because a written request and improvement notice have been served on the landlord.
The notice is held to be valid. This is because step one has not been satisfied. Step one requires the written complaint before the section 21 notice was served, but in this example, the written complaint was a week later.
Where a property is genuinely for sale at the time, the section 21 notice is given; neither the six-month prohibition after an HHSRS notice has been served nor the retaliatory eviction rules apply.
If a property is genuinely on the market for sale, it is not defined in the legislation, and it appears to be for the court to decide - each case is considered on its own merits.
However, what is NOT genuinely for sale is helpfully defined (although not conclusively - see the words “in particular” in section 34(3)).
A dwelling-house is NOT genuinely on the market for sale if, in particular, the landlord intends to sell the landlord’s interest in the dwelling-house to—
A business partner of a person (“P”) is a person who is—
The legislation does not define the above as a definitive list of what is NOT genuinely for sale. The court may consider a house for sale at £500,000 when three agents have valued the same house as £250,000 to be not genuinely for sale.
The critical word is “genuinely”.
Putting a house on the market on the same day as serving a section 21 and then taking it off the market the following day is not likely to be “genuine”.
What’s more, the legislation does not prohibit the sale of a property to a business partner or associate of the landlord - it’s just that the retaliatory eviction rules will continue to apply under both old and new landlords.
Finally, the property must be genuinely on the market at the time section 21 is served. It is no use to put it on the market a couple of days before a possession hearing, and that will not avoid the retaliatory eviction rules.