Let’s talk about evictions, and the dreaded enforcement notice. Recently, we’ve had a lot of Section 21 notices where tenants have responded to the notice arguing that the property has been left in a state of disrepair. The question for landlords is whether this is a valid defence to a Section 21 notice?
The mere existence of disrepair is not in itself a defence to a Section 21 “no fault” eviction. Especially if the landlord has complied with their obligations to serve certain documents on the tenant and has served a properly drafted notice.
A quick reminder of the documents that must be served:-
- Prescribed information relating to the deposit. This must be properly completed and signed by the landlord. The relevant clause in the tenancy agreement relating to the recovery of the deposit must be cited – a common oversight by landlords and sometimes agents.
- The correct deposit scheme leaflet – custodial or insured.
- The deposit certificate.
For all tenancies after 2015:
- All gas safety certificates including the one in place at the start of the tenancy
- EPC
- How to Rent guides – for each tenancy renewal and at the point the fixed-term tenancy expired and became periodic.
What if the council has issued an improvement notice?
Sometimes the council will serve an enforcement of improvement notice, as a result of an alleged disrepair. If the tenant has alleged the disrepair to their landlord and agent, but the agent has failed to repair in line with their obligations? Then a landlord is not able to serve a Section 21 notice within 6 months of the council enforcement notice.
What if you comply with the notice?
If the landlord complies with the notice, then the landlord must inform the council who can cancel the notice, and then a valid Section 21 notice can be issued.
What if there is no such notice? Can the tenant still try and defend the matter on the basis of disrepair?
Yes, if the tenant wishes to raise this defence, then they can. However, without an enforcement or improvement notice being in place, this is not of itself a valid defence, and the court should award a possession order in favour of the landlord.
What if an improvement/enforcement notice is served after I have issued proceedings?
It may be that the council issues the notice during possession proceedings, before the possession order is given by the court. If this happens, then the court cannot issue a possession notice.
Hopefully this article answers some of the questions landlords may have about disrepair in Section 21 proceedings. If you have any further queries, please do not hesitate to get in contact with Woodstock Legal Services. We would be happy to assist wherever we can.
