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Attention Landlords - Additional Hurdles to Serving Possession Notices

on Thursday, 01 October 2015.

On 1 October 2015, legislation came into effect which imposed a number of additional obligations on landlords renting out property to residential tenants under an Assured Shorthold Tenacy ('AST').

The additional obligations only apply to ASTs which commenced on or after 1 October 2015. However, these obligations will operate retrospectively and apply to all ASTs from 1 October 2018. It is important that landlords are aware of these additional obligations because a failure to comply with them can prevent a landlord serving a valid section 21 notice on the tenant, seeking possession of the property.

Existing Obligations

It is already the case that, where a tenant has paid a deposit under an AST, the landlord must protect the deposit in a tenancy deposit scheme and provide the tenant with 'prescribed information', which consists of information about the scheme.  It is not possible for the landlord to serve a valid section 21 notice until this requirement has been satisfied.  A failure to comply with this requirement can also result in fines for the landlord.

It is also worth being aware that if you are renting out a House in Multiple Occupation (a 'HMO') which is a property at least 3 storeys high, with at least 5 tenants living there forming more than 1 household and sharing a toilet, bathroom or kitchen facilities with other tenants, this must be licensed. A failure to obtain a licence will prevent a landlord from being able to validly serve a section 21 notice.

New Obligations

The new legislation provides that the landlord will be unable to serve a valid section 21 notice if the landlord fails to provide the tenant with a copy of any of the following documents (if applicable):

  • The Energy Performance Certificate for the property - the only exception to this is where the property is a HMO.
  • If there is a gas supply at the property, the Gas Safety Certificate.
  • The Department for Communities and Local Government’s booklet, 'How to rent: the checklist for renting in England' (linked to current version at the time of writing). This obligation does not apply where the landlord is a registered provider of social housing.

There is now a further obligation on landlords with the aim of preventing retaliatory evictions. If a tenant has made a written complaint to the landlord regarding the state of the property, the landlord will not be able to serve a valid section 21 notice where:

(a) they have failed to respond within 14 days

(b) they have responded but inadequately, or

(c) they serve a section 21 notice in response to the complaint

In addition, a tenant can subsequently make a written complaint to their local housing authority who in turn can serve an enforcement notice on the landlord. If a landlord serves a section 21 notice after the tenant has made a written complaint to their local housing authority, it will be invalid.

A further change is that a section 21 notice can no longer be served within the first 4 months of an AST regardless of the expiry date in the notice.


As the number of hurdles preventing landlords serving a valid section 21 notice increases, it is increasingly important that landlords are alive to these existing and new obligations. A failure to comply with these technicalities can potentially cause significant delays when trying to gain vacant possession of a property. Further changes have been made, including the prescribed form of section 21 notices, but these are outside the scope of this article.

For more information, please contact Stephen Burke in our Commercial Property Law Team on 020 7665 0962

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