Our guidance on the new Section 21 – kicking in on October 1 – has attracted one of EYE’s highest-ever read counts in a short space of time.

Coming before the Government published its own Regulations or guidelines, the all-important advice by lawyer Michelle Cox remains on our front page as a must-read.

However, some readers raised some valid comments which she has now responded to as follows, and which we hope agents will find helpful.

1. When does the obligation to repay rent occur?

 The wording of the new Section 21C relating to repayment of rent states as follows:

21C Repayment of rent where tenancy ends before end of a period

(1) A tenant under an assured shorthold tenancy of a dwelling-house in England is entitled to a repayment of rent from the landlord where—

(a) as a result of the service of a notice under section 21 the tenancy is brought to an end before the end of a period of the tenancy,

(b) the tenant has paid rent in advance for that period, and

(c) the tenant was not in occupation of the dwelling-house for one or more whole days of that period.

As it stands, there is no clarification on this section but it does not specifically identify the date at which the obligation to repay rent kicks in as being the expiry date of the notice (presumably so that the tenant remains liable should they remain in occupation after the expiry date). Instead, it refers to the tenant’s occupation of the premises. As such, this leaves the section open to interpretation and will no doubt attract claims from tenants for repayment where they have voluntarily vacated early.

Where notices are due to expire at the end of the fixed term, the usual contractual rules will apply and if a tenant voluntarily vacates early, they will remain liable for rent for the contractual period in line with the tenancy – anything beyond that will be repayable if not already apportioned.

Where most tenants pay monthly, there remains the risk that a tenant will cease payment for the last part of the term in any event. It also remains the case that it is unlikely for a tenant to vacate sooner than legally required given the difficulty with re-housing and so the question of repayment is only likely to kick in where the tenant remains to the end of the notice having paid rent to a later date.

2. Gas Servicing

 If a tenant fails to provide access for a case safety inspection, this is a breach of tenancy and, so long as the landlord can show that he or she has made regular and genuine attempts to gain access for the purposes of carrying out a gas safety check and obtaining a gas certificate then there should be no impact on the Section 21 Notice.

It will not prevent a tenant from seeking to defend court proceedings by stating that the Section 21 was not valid as a result of no gas certificate being in place at the time the notice was served and in these cases, a hearing will have to be fixed. However, if a landlord can provide evidence at that hearing that the tenant failed to agree to or allow access for the gas safety inspection then this will allow a landlord to defend such a claim. Bear in mind that where the legislation states a notice “cannot be served”, it essentially means that the validity of a Section 21 Notice can be challenged.

3. Where a Tenant complains as to the condition of the property

Where a tenant has raised a complaint to the landlord or agent in writing about the condition of the property, there are restrictions against the landlord’s reliance upon a Section 21 Notice:

• If such a complaint is raised and no adequate response is received, or a response is received but no action is taken to remedy the complaint, then the tenant will need to complain to the local authority. Until the local authority has decided whether to issue a Relevant Notice (for example, an improvement notice) on the landlord for works to be carried out, then a Section 21 Notice cannot be relied upon. If a Relevant Notice is served by the local authority, a Section 21 Notice cannot be served for 6 months from the date of that Notice.
• If the landlord/agent adequately responds within 14 days and the work is carried out, this will have no impact on a Section 21 Notice.
• The landlord will have a defence where the tenant has failed to use the property in a tenant-like manner; the disrepair is due to a breach of the tenant’s obligations under the lease; where a mortgagee is seeking possession; or where the property is genuinely on the market for sale at the time the Section 21 Notice is served.

* Michelle Cox is a property lawyer at Greenwoods. She can be contacted at mcox@greenwoods.co.uk