An end to “no fault” eviction? A legal FAQ on the repeal of section 21

The Government has announced that it is consulting on plans to abolish “no fault” eviction in England by repealing section 21 of the Housing Act 1988. The proposed scrapping of section 21 is to be accompanied by a package of reforms to residential tenancy law, including changes to the Section 8 eviction process, which allows landlords to evict tenants only if one of the specified ‘grounds’ can be proved.

When could this change come into effect?

This is only a proposal at this stage. An Act of Parliament will be needed to make changes to Housing Act 1988. This is likely to be quite a lengthy process as the Government has indicated that there will be a further consultation on their proposals first. There is a lot of detail to work out first, and the Government have stated that they wish to build a consensus on a package of reforms – that will take time.

An Act abolishing section 21 notices in England would not be sped through Parliament, and it may face significant opposition from backbench Conservative MPs during the ‘English Votes for English Laws’ phase of the parliamentary process. A general election or change of Prime Minister could substantially change the pace or direction of this reform.

Overall it seems unlikely that the abolition of section 21 would be in force before late 2020 at the very earliest.

Will this affect existing tenancies?

Perhaps. Changes to tenancy law tend not to be retrospective because it is normally seen as inappropriate for new laws to alter contracts which have already been agreed. Retrospective legislation might breach Article 1 of the First Protocol to the European Convention on Human Rights, the right to peaceful enjoyment of property. However, Parliament has the power to introduce retrospective legislation and has used this to bolster tenants’ rights in the past.

If there were any indication that the Government intended for the abolition of section 21 to be retrospective, that could spark a wave of section 21 notices being served pre-emptively.

Will landlords use large rent increases to force tenants out?

Some landlords might attempt this, but there is already a mechanism in the law to prevent this. If a landlord wants to increase the rent in an assured shorthold tenancy, they must either rely on a clause in the agreement or a section 13 notice.

A clause in a tenancy agreement which allowed a sudden spike in the rent is likely to be an unfair term under the Consumer Rights Act 2015 and that would make it unenforceable.

The section 13 notice procedure allows tenants to challenge increases which raise the rent above market rent. This is a fairly light touch version of ‘rent control’ since the market rent will be very high in some locations, but landlords will not be able to simply double the rent instead of serving a section 21 notice.

What if the landlord wants to move in or sell the property?

The Housing Act 1988 currently allows landlords to evict a tenant in order for them or their spouse to move in, but section 21 notices, which do not require the landlord to give any reason, are generally seen as simpler by landlords.

The Government is proposing to give new powers to landlords to evict tenants where they want to sell a property or move in as part of their package of reforms.

And of course, properties can be sold with the tenant living in them. The buyer simply becomes the new landlord. Landlords generally prefer to sell properties empty because they are likely to secure a better sale price.

Will this change mean tenants are only evicted when they have done something wrong?

No. Landlords can rely on any of the Grounds for Possession in Schedule 2 of the Housing Act 1988, and many are these grounds do no rely on the tenant being at fault. The Government is proposing to strengthen those grounds, meaning that the proposal is not really an abolition of ‘no fault eviction’ at all. However, scrapping section 21 would put an end to tenants being evicted for no reason or without being told why.

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