Selective licences are often overlooked by both landlords and tenants, and can lead to issues with regards to section 21 claims.
Certain designated areas or wards within boroughs require the landlord to take out a selective licence for their property as per Part 3 of the Housing Act 2004. The council may designate either the whole or a part of its district as subject to selective licensing of residential accommodation. However, properties let by the council and Private Registered Providers of Social Housing (PRPSHs) are exempt from the licensing requirements.
Selective licensing is not to be confused with mandatory licences for Houses in Multiple Occupation (HMO). Selective licences apply to all properties in the private rented sector in the areas designated by a local authority. It should also not be confused with ‘additional licences’, which can be required when there are safety concerns regarding a property.
To regain possession of a property let under an assured shorthold tenancy without having a specific reason or ground for possession, a landlord must first serve a valid section 21 notice on the tenant. Landlords who are required to have a licence but who do not have one cannot serve a valid section 21 notice unless they can show that they have applied for one (ss.75 and 98 Housing Act 2004). If the selective licence application is not made prior to the service of a section 21 notice, then the section 21 notice will be invalid and any possession proceedings commenced under that section 21 notice will be unsuccessful and could lead to a costs order being made against the landlord that is claiming possession under it.
Our advice to landlords is to check with the relevant council to ascertain whether a selective licence is required for their properties in the private rented sector.
Not only can not having a selective licence invalidate a section 21 notice, it can also lead to prosecution and a fine under section 95 Housing Act 2004, a civil penalty of up to £30,000, a banning order under regulation 3 of the Housing and Planning Act 2016 (Banning Order Offences) Regulations 2018 SI 2018/216 or a rent repayment order for the period in which the property was unlicensed when it should have been licensed.
Our advice to tenants is that if they receive a section 21 notice, they should contact the council to check whether any licences are required for the property. If a licence is required our advice is to ask your landlord for evidence that the licence has been obtained or that an application has been made.
At Duncan Lewis Solicitors our housing lawyers can assist landlords who are having difficulties obtaining licences as well as defending an application from the local authority or tenant for the failure to obtain a licence.
Our team also advises and assists tenants who believe that their landlord has failed to obtain a licence for the property they are renting, and can also defend a possession claim brought by a landlord under s21.
Author Daniel Bolster is a trainee solicitor in the housing department working under director Manjinder Kaur Atwal.
Contact Daniel on 02031141243 or at firstname.lastname@example.org
Contact Manjinder on 02031141269 or at email@example.com
Duncan Lewis Housing Solicitors
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