13 Jun 2017

Understanding Section 33 and 34 of the Deregulation Act 2015 – Preventing Retaliatory Eviction

Section 33: Preventing retaliatory eviction

The effect of this section is to provide six months’ protection from eviction under the section 21 procedure, for a tenant occupying a dwelling under an assured shorthold tenancy, where a relevant notice has been served by a local housing authority in relation to a dwelling. Subsection (1) provides that a landlord may not give a section 21 notice in relation to a dwelling within six months following the date of service of a relevant notice in respect of that dwelling. Subsection (2) provides that a section 21 notice given in relation to an assured shorthold tenancy of a dwelling is invalid if, before the section 21 notice was given the tenant had made a complaint about the condition of the dwelling to the landlord, the landlord did not provide an adequate or timely response to the complaint or served a section 21 notice on the tenant, and the tenant then contacted the local housing authority about the matters raised with the landlord, who served a relevant notice in relation to the dwelling. When a landlord has been prevented from obtaining possession by virtue of the section, the landlord is required to serve a fresh section 21 notice to regain possession of the dwelling.

Subsection (3) provides an explanation of what is to be considered an adequate response for the purposes of this provision. Subsection (4) sets out that the requirement for a tenant’s complaint to be in writing does not need to be met where the tenant does not know the postal or email address of the landlord. Subsection (5) sets out that the requirement for the tenant to complain to the landlord in the first instance and to allow the landlord 14 days to respond, does not apply where the tenant made reasonable efforts to contact the landlord to complain but was unable to do so.

Subsection (6) provides that the court must strike out proceedings for an order for possession under section 21 if a section 21 notice has become invalid due to subsection (2), which means that the tenant must have complained to the landlord and local housing authority, then a relevant notice is served by the local housing authority before the order for possession is made. However, subsection (7) sets out that the service of a relevant notice after an order for possession has been made does not provide grounds for the setting aside of the
possession order.

Subsection (8) sets out that the protection from eviction provisions do not apply where a relevant notice has been revoked as a result of being served in error, or quashed, or where the decision of the local authority to take the action to which the notice relates has been reversed.

Subsections (10) and (11) provide that a relevant notice includes a notice that is served in relation to any common parts of the building of which the dwelling forms part, where the landlord has a controlling interest in those common parts and the condition of the common parts is such as to affect the tenant’s enjoyment of the dwelling or any common parts which they are entitled to use.

Section 34: Further exemptions to section 33

This section provides for certain exemptions from the measures to prevent retaliatory eviction contained in section 33. These include an exemption where the condition of the dwelling which resulted in the serving of the relevant notice was due to the tenant’s breach of their duty to use the dwelling in a tenant-like manner, or breach of an express term of the tenancy to the same effect. There is also an exemption where the landlord has a genuine intention to sell their interest in the dwelling to a person that they are not associated with.

Examples of where the landlord would not have a genuine intention to sell include where the landlord intends to sell to a family member or business partner. Furthermore, there are also exemptions where the landlord is a private registered provider of social housing and where a mortgagee (including a receiver who has been appointed by the mortgagee to act on behalf of the landlord) is in possession of the landlord’s interest in the dwelling and the mortgagee needs to be able to exercise their power of sale with vacant possession.