The Section 21 notice is the landlord’s trump card, “a no tenant default required” cure-all which will enable possession of the property to be recovered without having to give any justification other than the service of the notice itself. Changes are afoot however and they take effect from 1st October 2015.
Although the removal of the requirement to time the expiry of the notice to a specific date is a welcome clarification of the law the overall consequence of the changes set out below is that landlords will have to tread more carefully than ever. They face a number of potential hurdles and a valid Section 21 notice will only be capable of being served once those hurdles have been overcome.
Sections 33 to 41 of the Deregulation Act 2015 (DA 2015) contain provisions in relation to notices ending an assured shorthold tenancy (AST) under section 21 of the Housing Act 1988 (section 21 notice). The provisions apply in England (and not Wales). These include:
• Restricting a landlord from taking retaliatory action (sections 33 and 34, DA 2015).
• Removing the need for a landlord to specify in a section 21 notice the last day of a period of the tenancy as the date on which the tenancy comes to an end (section 35, DA 2015).
• Limiting a landlord’s ability to serve a section 21 notice at the start of an AST, to ensure that tenants are actually given two months’ notice before the tenancy comes to an end (section 36, DA 2015).
• Enabling the Secretary of State to make regulations that prescribe the form of a section 21 notice (section 37, DA 2015).
• Inserting a new section 21A into the Housing Act 1988 (HA 1988), under which the landlord cannot serve a section 21 notice where it has failed to comply with certain prescribed requirements (section 38, DA 2015).
• Inserting a new section 21B into the HA 1988, introducing an obligation on landlords to provide information about the respective rights and responsibilities of both the landlord and the tenant under an AST. The landlord will be prevented from giving a section 21 notice when it is in breach of this requirement (section 39, DA 2015)
• Giving a tenant a statutory right to claim back rent paid in advance, in respect of a period falling after a section 21 notice brings the tenancy to an end (section 40, DA 2015).
The new rules will apply to ASTs granted on or after 1 October 2015. They will not apply to a fixed term AST granted prior to 1 October 2015 even if, after the relevant date, the fixed term AST becomes a statutory periodic tenancy.
However, from 1 October 2018, the rules will apply to any AST (except for the requirement for the landlord to provide prescribed information about the rights and responsibilities of the landlord and tenant under the AST (DA 2015)
New prescribed form
The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646) (Regulations) were laid before Parliament on 9 September 2015. They will come into force on 1 October 2015.
The Regulations set out the prescribed form of section 21 notice (Form No. 6A). They add this new form to the forms set out in the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 (SI 2015/620).
Form 6A states that a section 21 notice cannot be used where:
• The tenant has resided in the property for less than four months.
• The landlord is prevented from retaliatory eviction under section 33 of the DA 2015.
• The landlord has not complied with the requirements under the regulations
• The landlord has not protected the tenant’s deposit under a Tenancy Deposit Scheme
• The property requires a licence but is unlicensed.
Form 6A states that:
• It must be used for all ASTs created on or after 1 October 2015, except for periodic tenancies that come into being after 1 October 2015 and which were fixed term ASTs created before 1 October 2015.
• It may nevertheless be used for all ASTs.
Regulation 2 of the Regulations provides that, for the purpose of section 21A of the HA 1988, the landlord cannot serve a section 21 notice when it has not done either of the following:
• Provided the tenant with an energy performance certificate free of charge, in accordance with section 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012 (SI 2012/3118)
• Provided the tenant with a gas safety certificate, in accordance with regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (SI 1998/2451).
The requirement to provide a gas safety certificate is limited to providing a copy.
Although regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 provides that the landlord shall provide a copy of the record within 28 days of the gas safety check, the Regulations disregard the requirement to comply within 28 days.
Regulation 3 of the Regulations provides that the landlord must supply the tenant with a copy of DCLG: How to rent: The checklist for renting in England.
Landlords are not required to supply a further copy of the booklet each time a different version is published during a tenancy. The requirement does not apply where:
• A landlord is a registered provider of social housing.
• The landlord provided the tenant with the booklet under an earlier tenancy and that version is the latest version.
For advice in relation to this and all aspects of Landlord and Tenant Law please contact Will Oakes, litigation partner on 01206 239764.