How to Challenge a Section 21 Notice

Despite the government’s temporary pause on eviction proceedings the system is going to be back soon enough — here’s what you need to know if you’re facing it.

We are likely to see a wave of evictions sweep the country come the end of next month, following the end of a suspension of nearly all court possession cases until (currently) September 20th. Whether or not this will be temporarily extended again, unless substantial legislative changes are instituted, Shelter anticipates that over 230,000 renters are at risk of eviction, in large part due to falling into rent arrears linked to job losses, reductions in income, and shielding during the Covid-19 outbreak. What this means is that it is still vital that renters understand their legal rights and the ways in which they can challenge an eviction notice.

Of greatest notoriety are Section 21 notices, commonly referred to as “no fault” evictions. These only apply to assured shorthold tenancies, which are the most common kind of private rented tenancy. They are the most common kind of eviction in the private rented sector, used for more than 80% of evictions against private tenants. And such notices are a delight to landlords as they do not have to offer a reason for evicting their tenant — no matter if you paid the bills on time, fixed up the plug sockets, bought the landlord a bouquet of flowers for Christmas (gross, don’t do this) — despite all the good behaviour in the world, a Section 21 eviction notice can still arrive at your door.

Whilst there is no legal challenge you can make on the grounds of the eviction notice, there are still several options available for worried renters. Landlords are arrogant, and our legal system is riddled with bureaucratic rules and regulations and both of these things mean that fairly often eviction notices are served incorrectly, without the proper procedure, with errors in the text, and with mistakes that can be used to your advantage in challenging an eviction notice. I’m going to outline some of the most important things to know about section 21 eviction notices and how to challenge them.

The first thing to know is that receiving a section 21 notice does not mean you have to move out immediately. It just means that if you don’t leave by the date given in the notice, the landlord has the right to get a court order to evict you. Your landlord must by law give you at least two months’ notice, which has been temporarily extended to three months until September 2020 if you received the notice on or after March 26th 2020. There is talk that they are also considering extending this notice period to six months but there has been nothing confirmed on this as of yet. As such, this is the first thing to check: has the correct notice period been served? If it is less than two (currently three) months then the notice is automatically invalid.

Even if the correct notice period is on the form, if you choose not to leave by the given date, your landlord has to get the courts to grant a possession order. And then they have to get bailiffs to come and evict you. So you have time. Your tenancy lasts right up until you are evicted by the court.

You may want to use this time to try to negotiate with the landlord, see why they are serving the notice, maybe get an extension — or to invest in some quality barricades — it’s up to you.

Ways to challenge a Section 21 notice

There are other ways in which the section 21 notice might be served incorrectly or be able to be overthrown due to technicalities. The most common reasons are:

  • It’s the wrong form. This actually happens quite often as the form is changed frequently. The form was changed last on the 26th March and will probably be changed again on 1st October.
  • Your name, address, or other details are incorrect – for this to apply it needs to be a mistake that reasonably could give confusion over who the notice is for and what it means – a small typo will not suffice.
  • They have sent it too soon – if it’s a fixed term tenancy, you can not be evicted before the end of the tenancy term, which is usually six months or a year. Check your contract!
  • They have issued you with a section 21 notice after complaints about disrepair. This is a bit complicated, you have to be able to prove that within the last six months the council has sent your landlord a notice asking them to carry out repairs, and it is difficult to get the council to do this – evidence that you personally complained to the landlord is not enough. You’ll probably need legal advice if the eviction notice comes in the wake of a disrepair complaint.
  • You do not have an up-to-date gas safety record. Your landlord has to do a yearly gas safety check and give you a copy of the record. If you never received one at all, it is very likely any section 21 notice is invalid
  • Your deposit was not put in a recognised tenancy deposit protection scheme – they must have told you which scheme your deposit was put in within 30 days of receiving your deposit and you are entitled to a certificate proving this.
  • At the start of your tenancy you did not receive an energy performance certificate and the most recent copy of “How to rent: the checklist for renting in England”. This is a government document and you should check their website to see if you received the most up to date version.
  • They have charged you unlawful fees. For any tenancies which began after June 1st 2019, your landlord is only allowed to charge the following fees: deposit of up to five weeks’ rent, a holding deposit of no more than one week’s rent, a key replacement fee, and limited fees for changing or ending a tenancy early.
  • In some local authorities and for some forms of housing your landlord may need a licence – these vary depending on where you live, and you should check on your local council’s website.

There are other ways in which a section 21 notice can be invalid, they are also listed on the notice itself. If you are unsure, you should seek advice from Shelter, Citizens Advice, or other advice agencies. Also it is worth noting that many of the above depend on when your tenancy started so do double check whether they apply to you.

How to challenge the notice

So, if I’ve spotted a mistake, how do I go about challenging the notice?

This is quite easy. When you receive court papers, they will come with a defence form which you fill in, explaining why you disagree with the claim and any mistakes the landlord has made. Be as detailed as possible. IF YOUR LANDLORD HAS MADE MULTIPLE MISTAKES ONLY MENTION ONE – it could be that they make the other mistakes again on a subsequent notice and you can go through the process again, buying yourself even more time.

Once you’ve filled in the form you must return it within 14 days. The court will then let you know the date of the hearing where you will have a chance to tell the judge why you think the notice is invalid.

Some important things to think about

Now, four important things to consider:

One: if you are successful, your landlord will probably send another notice immediately with the mistake corrected – this is why it could be important to save them up and use the mistakes one by one.

Two: if you are unsuccessful, you may have to pay the landlord’s costs. It is worth seeking legal advice if you think this might be the case.

Three: even if you are successful, you will almost certainly not be getting a positive reference from your landlord. Bear this in mind when deciding to challenge or not – do you have somewhere else lined up? How much might you need to rely on their positive reference?

Four: whether you win or lose, by law you do have to keep on paying rent until you leave the property – the landlord can file a separate claim for any rent arrears.

What if I don’t find any mistakes?

Even if you do not find a mistake or any reason to challenge the notice, there may be another option. Depending on your situation you might be able to apply to the courts for an extension of your tenancy based on “extreme hardship”. These extensions are for up to six weeks but you have to have a good reason, for example being near the end of a pregnancy term or that you need extra time to find a new flat which fits your accessibility needs. Courts are usually pretty up for granting these though, so it’s worth a shot!

Finally, it’s always worth joining your local renter’s union for help and support. In London, London Renters Union and Housing Action Southwark and Lambeth do fantastic work supporting people at the sharp end of the housing crisis. Across the UK, tenants union ACORN has branches in several cities. There are also a lot of smaller more localised campaigns so It’s worth giving it a quick google to see what’s around in your local area. Most unions expect you to join and to stay beyond dealing with your specific problem, so muck in and help others and on the way learn a lot and build important solidarities.

Also, if you feel like you are completely out of options, or just fancy doing something different, consider reaching out to the Advisory Service for Squatters, who run regular practical squatting nights and may be able to help you find somewhere to live.

~ Scorsby


Pic by Lynn Friedman