1 October 2015 – section 21 day

[Update 29/09/2015. New regulations correcting the obvious errors in the new prescribed section 21 notice have now been made. See here.]

On 1 October 2015, a whole range of changes come in, which affect whether or not a landlord can serve a s.21 notice on an assured shorthold tenancy (in England). There are some sensible ones, and then there are some which, because of the way the requirements have been set out, will inevitably cause confusion and problems. There is also a whole new prescribed form of section 21 notice, which itself contains a significant error.

The changes are a combination of the Deregulation Act 2015 and The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015 No. 1646). There are also supposed to be the Smoke Detector regulations, which fell apart in Parliament despite being supposedly in force by 1 October.

Specific changes – these apply for all new assured shorthold tenancies starting after 1 October 2015 (and then after 3 years, to all tenancies). By new, that means new – not a statutory periodic arising after 1 October, which is specifically excluded. But will include a ‘renewal’ tenancy – a fresh AST – granted on or after 1 October.

Retaliatory Eviction – the provisions of s.33 and s.34 Deregulation Act will come into effect for all new assured shorthold tenancies granted on or after 1 October 2015. We have discussed these here.

End date for a section 21 notice. The new section 21(4ZA) Housing Act 1988 removes the need for any s.21 notice, even under s.21(4)(a), to expire on the last date of a period of a tenancy (at least in England). Two months notice (for a weekly or monthly rent period) is all that is required.

To accompany this is the requirement to repay the tenant pro rata the ‘unused’ proportion of any rent paid in advance where the s.21 expires in the course of a rent period and the tenant leaves. (Bewilderingly, this is to be enforced by any court making an order for possession under s.21. But if there are possession proceedings, the tenant probably didn’t leave…).

Date for serving a section 21 notice. The new sections (4B) to (4E) of s.21 HA 1988 mean that:

  • A s.21 cannot be served in the first 4 months of a tenancy. But not applicable to a statutory periodic arising, or a replacement tenancy (depending on what ‘original’ means in the new 4B and if it is different to the meaning of ‘original tenancy’ in the new s.215B(1) Housing Act 2004, which can also be a replacement tenancy by way of s.215B(3) – this is all from the Deregulation Act).
  • A possession claim cannot be started on a section 21(1) or (4) notice after the end of 6 months from the date the notice was given. Or for a s.21(4) notice where the notice period has to be longer than two months, a possession claim cannot be started based on that notice more than 4 months after the end date specified in the notice.

Prescribed form of s.21 notice – in the schedule to the SI here. Must be used for all ASTs starting on or after 1 October 2015. May be used for existing tenancies. [NB The notice in the schedule to the SI is wrong! It says at 3 that for a periodic tenancy, the notice is only valid for four months from date of issue. This is simply wrong! Hopefully will be amended quickly.]

Prescribed legal requirements. The new s.21A HA 1988 – No s.21 notice can be given unless (from the SI):

  • The tenant has been provided with the Energy Performance Certificate for the property (probably before the commencement of the tenancy in order to be compliant)
  • The tenant has been provided with a current gas safety certificate. (The regs exclude the ‘within 28 days of inspection’ requirement, but don’t appear to exclude the requirement to provide the latest report before the commencement of the tenant’s occupation)

Prescribed information – the new s.21B – no s.21 notice can be given unless the tenant has been given (by landlord or agent) the prescribed information.

This prescribed information is the CLG booklet “How to rent: the checklist for renting in England” (Current version). It can be given in hard copy or where the tenant has notified the landlord/agent of an email address where the tenant is prepared to accept service of notices, by email.

Now things get a bit complicated. The landlord does not have to provide a further copy whenever the booklet is updated, during the course of the tenancy. However, where a ‘new’ replacement tenancy has been granted (including a statutory periodic, I think), there is no requirement to give a further copy, unless there is a new version of the booklet out before the first day of the new tenancy.

Yes, a stroke of genius there. Rather than make it a ‘once only’ provision, or alternatively require the booklet to be given at the start of any ‘replacement tenancy’ as well as the original one, the Regulations make it conditional on whether the booklet has been updated before the start of the replacement tenancy.  Never mind, there is to be a review in 5 years.


Lots to go wrong here. Not least given the relative paucity of information on these changes (and the last minute approval of the regulations).

The requirements for providing EPC and gas certificate, arguably before the tenant moves in, will no doubt trip up quite a few landlords and agents. Likewise, the ban on service of a notice within the first 4 months of a tenancy will trip up the inveterate ‘serve s.21 on day one of tenancy’ brigade.

Moreover, the actual provisions make it impossible for a s.21 notice to expire on the last day of a 6 month fixed term. (Can’t be served in first four months, but must give two months notice).

The ‘use it or lose it’ provisions will also come as a shock to many, used to letting a s.21 dangle over their tenant’s heads for months, if not longer.

But it is the ‘How to rent’ booklet provisions that seem most likely to cause long term chaos to me. The expectation that landlord (and agents) will check before the start of each replacement tenancy to see if the booklet has been updated since, oh, a year ago, strikes me as hopelessly optimistic.

It also makes me think that someone had better keep an archive of updated editions of the booklet, with dates, for both landlords and tenants purposes. I’ll set up a page for this, I think.

In any event, expect there to be a lot of invalid s.21 notices from 1 February 2016 onwards…

(And we shouldn’t forget the prescribed form for section 8 notices, required from 7 April 2015 onwards. Form 3 here, (which is itself amended by Reg 4(4)(a) from 1 October, with a subtle change of wording to the instructions about not using Section 8 notice for a section 21 claim, but no new template form has yet been provided).  Nor should we forget the now ridiculously complicated deposit regulation requirements after the Deregulation Act, as examined here.)



Posted in Assured Shorthold tenancy, Housing law - All, Possession and tagged , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +


  1. “To accompany this is the requirement to repay the tenant pro rata the ‘unused’ proportion of any rent paid in advance where the s.21 expires in the course of a rent period and the tenant leaves.”

    The wording of that new provision is rather terrible.

    It does not state that the tenant is owed a refund if he leaves, but if the tenancy ends… And the tenancy does not end just because the tenant leaves.

    It also states that the tenant is owed a refund for every day that he was not in occupation during the last period, which is not the same as until the tenancy ends.

    Terrible drafting, lots to go wrong indeed, and one has to wonder how it will be interpreted.
    There is a big potential for abuse and for landlords having to refund rent on an existing tenancy.

    Don’t get me started on the booklet…

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  3. Pingback: Prescribed Legal Requirements Before Serving A Section 21 Notice | GRL Landlord Association

  4. In relation to the requirement to serve EPC and Gas Cert your words

    “arguably before the tenant moves in”, and elsewhere
    “probably before the commencement of the tenancy in order to be compliant” highlights a potential problem as it is not clear if there is intended to be a time limit at all, or if the landlord can remedy a failure prior to issue of a S21.

    The Gas Installation regs require a landlord to issue tenants an existing certificate prior to occupation and then a subsequent one within 28 days. The new S21 regs say that the 28 day requirement does not apply but neither does it say “immediately” or prior to the issue of a S21.

    This does not bode well

    • Colin – yes, exactly. Hence my qualifications. My view on the gas safety regs is that the 28 day requirement is ruled out – so a safety cert could be provided more than 28 days after an inspection during the tenancy and then a s.21 served, but that the initial requirement to provide the existing cert before the tenant takes up occupation is not excluded, so ought to apply.

      Does this mean that, if breached, no s.21 could then be served until after an inspection during the course of the tenancy and a cert provided?

  5. “■A s.21 cannot be served in the first 4 months of a tenancy (but not applicable to a statutory periodic arising).”

    My reading of 4B(b) is that it’s not applicable to tenancy renewals either. It’s just the first, ‘original’ tenancy where the 4 month time limit applies. I stand to be corrected.

    • No, I think that is right. Ridiculous, but right. And of course the 6 months from date of service ‘use it or lose it still applies.

      Though I wonder about ‘original’ tenancy in 4B(4). ‘Original’ is not in Housing Act 1988 as it was pre Dereg Act. And the equivalent definition of ‘original tenancy elsewhere in the Deregulation Act (in the new s.215B(1)(a) to Housing Act 2004) is qualified by the new S215B(3) to mean that a replacement tenancy is capable of being an original tenancy (for the purposes of receiving a deposit, at least).

      The drafting is just wonderful.

  6. Great article thanks. The EPC and gas safety requirements should not trip up landlords (or agents):

    EPC – The Energy Performance of Buildings (England and Wales) Regulations 2012 have been law since 9th January 2013 in which it states ‘The prospective landlord must make available free of charge a valid energy performance certificate to any prospective tenant at the earliest opportunity and in any event no later than whichever is the earlier of:
    The first time the prospective landlord makes available to a prospective tenant any written information (such as Lettings particulars for example) about the building to the person; or
    At the time which the prospective tenant views the building.
    The landlord must ensure that a valid energy performance certificate has been given free of charge to the person who ultimately becomes the tenant.

    Gas Safety: Duties of landlords are covered in The Gas Safety (Installation and Use) Regulations 1998 and specificalły Part F, Regulation 36 provides something like ‘a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises.’

    So these EPC and Gas safety requirements are nothing new and should not be tripping up landlords with these changes.

  7. Hello Giles, re the gas cert. requirement – what’s to stop a savvy tenant who does not want to be evicted for whatever reason (and who is paying rent on time so S8 no use) from refusing access for the gas cert. to be renewed?

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  9. Sue, This is one of the circumstances where good practice and file management is key. A good landlord should be able to show that the lack of the Gas Safety Cert was down to the continued refusal and obstruction of the landlord by the tenant.

    In the absence of a specific date given in the S21 regs (as opposed to the Gas Regs) it remains to be seen if an arguable defence can be filed, although there does not appear to be any specified grounds that I can find for a landlord unless there is a “reasonable grounds” defence as under S20A of the HA 1988, but not sure where it is

    • Or, threaten/get an injunction for access. This would really be needed to comply with the gas safety regs anyway, as there is no ‘access obstructed’ defence.

    • If you look at the wording of the Gas Safety regs that have to be complied with, i.e. reg.36(6), that requires that a gas safety certificate be provided to the tenant.

      The 2015 Regulations say the 28 day bit doesn’t appply but makes no mention of what happens when a tenant has refused access. On a proper reading of the new regs, if there is no certificate provided to the tenant you can’t serve a s.21 irrespective of the reason behind there being no certficate.

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  11. The footnote to section 2 of the new prescribed form (allow two months plus two days for service by post) is a bit of a trap. What happens if the tenant can show that the notice did not come in the post until the third day, or the fourth day after posting- where for example service was effected over a bank holiday or by second class post?
    The answer has to be that by following the two month plus two day rule, the tenant has not received the full 2 months notice, and thus the s21 notice is invalid (in the absence, of course, of a saving clause).

    The authors of the footnote appear to assume that delivery will take place no later than the 2nd day after it was posted.

  12. It is common that if a document may be served by post that legislation may determine a designated day of service by post. An actual date of posting is of course necessary to prove

  13. The new act states:
    Requirement for landlord to provide prescribed information
    3.—(1) A landlord under an assured shorthold tenancy of a dwelling-house in England, or a person acting on behalf of such a landlord, must give the tenant under that tenancy the information mentioned in paragraph (2).
    (2) The information is the version of the document entitled “How to rent: the checklist for renting in England”, as published by the Department for Communities and Local Government, that has effect for the time being.
    (3) The information may be provided to the tenant—
    (a) in hard copy; or
    (b) where the tenant has notified the landlord, or a person acting on behalf of the landlord, of an e-mail address at which the tenant is content to accept service of notices and other documents given under or in connection with the tenancy, by e-mail.

    Presumably this now allows notice to quit to be served by email (if the tenant is ‘content’)?

    Does this also mean the deposit prescribed info can also be served by email in such circumstances?

    • The Act specifically provides for ‘providing’ the handbook by email. It is silent about email being good for service.

      The usual rule is that email is not good service unless the recipient has agreed to service by email in advance. The difficulty, at least for time sensitive service, that a ‘failure’ message can take 2 or 3 days to come back to the sender, and no clear evidence of receipt (like a fax confirmation, or evidence of hand delivery).

  14. Pingback: New prescribed form for section 21 notices | Lettingmate

  15. WALES!
    As 21(4ZA) only applies to England, does Spencer v. Taylor still apply in Wales?

    SI 2015 No. 1646 is specific to England, is there a Welsh version or are landlords of properties in Wales spared the necessity of booklets and prescribed s21’s?

    Similar question to section 8 notices – is the April 2015 s8 prescribed notice valid in Wales or is the slightly different original one the only valid one in the valleys?

  16. Great Article but I think you make the S21 dates sound too difficult, rhe fact that the exact end date no longer has to be a rent due date makes it much easier for Landlords.

    If it really only tight for a 6m tenancy and you can always create a tenancy for 6 months and 7 days just to cover yourself, you take that extra 7 days on 1sr day of rental.

    Even without that

    If Start of Tenancy is 01/01/2016

    The S21 Earliest Serve date is 01/05/2016

    So the S21 Vacate Date (2 months) 01/07/2016

    which matches

    The 6 Month Tenancy which ends 01/07/2016

    But serving at 4 months should only be for 6 month tenancy as

    the S21 Expiry Date is 01/09/2016

    On a 12 month tenancy you could even give 3 months notice

    12 Month Tenancy expires 01/01/2017

    Optimum 12m S21 Service Date 01/10/2016

    You then have a month to deliver in other ways if the tenant plays games

    It then males sense to go statutory periodic to avoid all the booklet update nonsense as a SPT retains terms of original AST, that is why the booklet stuff exists, it makes sense that a new AST should use an up to date booklet.

    Best thing is have a 12 month & one week AST with a 6 month & one week break clause.


    • No, the 6 months tenancy ends 30/06/2016 in your example. That is the point.

      The 12 month is different, sure, because the 4 month limit is rather by the by. So a 2 month notice could easily be served to take effect 31/12/2016 (the actual last day).

      And a 6 (or 12) month ‘and a week’ AST has all sorts of problems on rent period. What is the rent period when it goes statutory periodic? The last end period was a week…

      I agree the booklet provision ‘makes sense’ for a new fixed term. What doesn’t make sense is leaving the landlord to check whether it has been updated. Why not just require the booklet to be downloaded from the site and served for each and every new AST? Achieves the same end, avoids all the faffing about with checking for update (by landlord and indeed tenant) to ensure validity of any s.21?

  17. The rent period is always monthly, otherwise you have to give greater notice, the 6 month and one week can be called an “initial period” in the tenancy agreement and that is my point, that it is the tenancy agreement that is the contract, the legislation just tries to make it fair. I imagine they will amend it to allow service 48 hours early, of course if you get the tenant to provide an email for service and to consent for its use at the time of signing the initial tenancy, then you can serve at midnight by using email feature called do not send until.

    My poinr was that 6 month tenancies are not good for Landlords or Tenants, ideally at least a year with the break clause at 6 months and one week (the initial period). If no issues with tenant not covered by Section 8 then let it go stat periodic and relax.

    • David

      No, you don’t get to have a monthly rent period ‘plus a week’. I suppose the first period could be a week and thereafter monthly. But the you couldn’t ask for first month’s rent in advance…

      I doubt there will be any amend, let alone for early service. This point was raised during the drafting and passage of the bill. And service ‘at midnight’ makes no odds. Will be the next day – the whole day as the date of service.

    • In David’s scenario the initial rent payment could be for a month and a week and thereafter monthly.

      I am not sure what would be the point of that extra week, though.
      Yes, considering the new wording it seems that a s.21 notice cannot expire on the last day of an initial 6 month AST. But it makes little difference in practice apart from creating a extra ‘trap’ for landlords.

  18. I think we are missing the point. I have always stated that the rules should be changed to favour Landlords in giving them greater powers to evict tenants in a shorter period of time. However the laws seem to be changing to favour not only the tenants once again as like housing benefit (exceptional situations accepted) but it would now seem that due to a shortage of housing which will increase over time it is in the Governments best interests to keep tenants in properties as long as possible whether they pay or not (even though they state in some respects non payment is not effected under this ruling, but tenants will take advantage of maintenance issues and the courts will have to judge on “test cases” in a system that is already in a horrendous state ). Council housing benefit officers already advise tenants not to leave properties and not to hand the keys back to agents or landlords under any circumstances and to wait for the final bailiff stage (which the courts have complete control over) but they can also now put back the process even further back mainly due to maintenance issues which can be falsified or manipulated in the tenants favour. Its all well and good having your repairs correctly noted but waiting 4 months for the council to carry out repairs on properties with no calls back even after continually chasing and waiting for 6-8 months for Council leaseholder information packs when selling is a disgrace! It would seem that the tide is turning for Landlords in general coupled with the change in tax laws. Could this be the start of a change in the market with a downturn to favour buy to live in as opposed to buy to let thus also reducing the burden on the Governments to build more homes. Lets face it if not its Green Belt next!

    • Simon.

      Tenants ‘will take advantage of maintenance issues’? You mean if the landlord has failed to carry out repairs within a reasonable time of being notified of them, and then waited for the Council EHO to inspect, and then waited for the Council to serve an improvement notice, the tenant is taking advantage of the landlord’s utter failure over a period of months to follow their obligations by defending a possession claim? How very dare they!

      And you seriously believe that Council EHO departments will falsify reports to benefit the tenant? It is virtually impossible to get them to inspect in the first place, let alone serve an improvement notice rather than send a bit of a suggestion by letter. I’m afraid you have left the realms of reality far behind and headed into the thin if heady atmosphere of conspiracy theory.

  19. hi giles

    i think thats harsh.

    tenants do falsify or exaggerate disrepair in order to delay possession or win compo. sometimes they dont understand that the disrepair is of their own making such as condensation mould or water splashing from douching causing a kitchen ceiling beneath to collapse (true/ seen it).

    and my experience of EHO’s is they do tend to side with the tenant as they are not surveyors and dont have the necessary knowledge to understand building defects.

    • The harshness was directed at the idea that the retaliatory eviction provisions could be gamed, with the conspiratorial assistance of the EHOs. And an issue caused by the tenant is not valid under the retaliatory eviction provisions.

      The HHSRS is not necessarily about building defects. It is not section 11.

      Ah, condensation mould – never seen a landlord who didn’t blame it all on the tenant. It can be down to tenant usage sometimes, to be sure, but often it is normal usage and bad design.

  20. With regard to the ‘How to Rent’ booklet – unless I’ve missed something I can’t see where the SI says it must be served at the start of the tenancy.

    It would appear to me that as long as it’s served before a s21 is issued then that’s ok, which would make things a bit easier. Have I missed something?

    • No, that is right. Which is why the post doesn’t mention service at start of tenancy. However, the first day of the ‘replacement’ tenancy is the relevant date for checking whether there is an updated booklet that needs to be served.

  21. The stringency of the proposed legislation was significantly reduced from the original proposals to that which was passed under the Deregulation Act.

    In any event an LA must act proportionately in respect of enforcement and must not just issue formal Notices merely because a complaint has been made. My knowledge of LA EHOs is that they will normally follow informal procedures, and there is no reason to suspect that they will change their practice even if presented with a written request by a tenant to a landlord of a want of repair along with the story of the history of the issue and lack of a reasonable response.

  22. Re the gas safety cert provisions: a new gas safety cert is required every year for rented property. Is this what must be served with the S21? The one served at the outset of the tenancy is likely to be long out of date and irrelevant, surely

    • Yes, must be the current gas safety cert. But doesn’t have to be served within 28 days of inspection for s.21 to be valid. (But would still be breach of gas safety regs not to serve within 28 days.)

  23. But neither the new form, the gas safety cert nor the EPO apply to tenancies that pre-date october 1st 2015.

    • No they don’t, as my post makes clear. But they will to any ‘renewal’ tenancy on or after 1 Oct. And EPC and Gas Certs are obligatory anyway.

    • re gas cert and EPO, yes, of course. Sorry, I’m a measure twice cut once sort of person so I like everything tied down just so. It can be very irritating.

  24. I have a tenant who wants to rent a property for 5 months. How would you suggest proceeding with this when both landlord and tenant want a 5 month tenancy, but the serving of the section 21 notice not being able to be done until 4 months in presents a real issue.

  25. The new section 21 provisions will not have changed the scenario that you put forward. An AST has always had provision that a landlord can not seek possession to be effective at a date earlier than six months from the commencement date.

    A landlord is able to issue a S21 after 4 months but it will not become operative until two months later as is standard for all ASTs. It is an anomaly within the system that has always been there. If both sides agree then the tenant moves out after 5 months. If there is a dispute by the tenant as with any tenancy, it will continue after the normal expiry date until the court orders possession

  26. It would seem to me that Mr Giles Parker has never let properties to tenants or he has paid somebody else to take the responsibility.

    An old saying springs to mind from a wise acquaintance he said ” if you ever want to do somebody a disservice in this life leave them a street full of houses”

    We are a maintenance company who look after many landlords and their properties in the north east of England, we are landlords ourselves with commercial, residential and social properties , I can honestly say it’s always been a tough business with if you do things correctly an average return of 3 to 4% per annum.

    I have attended many court cases on both sides and often witnessed the ineptitude of the legal system when the truthfull facts of the situation had been staring them in the face I have seen many young and old landlords financially ruined by the legal system and ” savvy tenants “.

    The inequality of the bond system is well documented and has caused many people trauma and distress, this new system introduced on the 1st October is going to be a pitfall of problems it’s fairly obvious that the Government are introducing these measures as a way of keeping their homeless figures down

    Most small and medium private landlords and agents are going to suffer to a high degree, there will be more insolvencys and cheaper properties coming on to the market as more and more landlords attempt to offload,

    Most private Landlords are normal people who have invested to build up their pension pots or people who have been left property or cash from wills, we call many of these accidental landlords, most of these will not survive, I believe that these ill thought out changes will bring nothing bur chaos to an already flawed system and it will ultimately lead to a higher degree of homelessness, I for one will not carry on next year on residentials I will be purely commercial I think a lot of people will be doing the same, this government are not thinking things through sensibly, they are reacting to what has been happening in the southern counties the north east is very different a high proportion of tenants in this area are housing benefits and if past experiences are anything to go by some will exploit this system to their own advantage.

    There are of course some bad landlords but they are in the minority generally we play by the rules, we are not ogres we are simply running a business, if these constraints were placed on any other sector the extent they have been placed on the private rented sector I am sure there would be an uproar.

    If any body out there is considering being a private landlord then take some advice from me ( with 35 years experience ) don’t , there are many other ways to make money

    Private renting would be a bad choice

    • Garry

      It would help if you didn’t start by getting my name wrong. It just suggests you aren’t paying any serious attention.

      I’ll pretty much pass by the rest, as you don’t actually say anything to the point. But there are plenty of sectors with equivalent levels of regulation. Like, well, most of them. Employment law, heath and safety regulation, consumer rights regulation, age regulations on sale of certain goods, food safety regulations, and oh so so much more. Given that landlords are providing a service which is vital for their tenant’s well being, I’m puzzled why you think that they, uniquely, should escape the kind of regulation that any other business has to comply with.

      I have no idea what you mean by ‘the inequality of the bond system’. But anyone sane would have to acknowledge that until the Localism Act amendments in 2012, the deposit scheme regulations had been interpreted by the courts in a manner wholly against the tenants’ interests.

      I can assure you that the 1 October regulations have not been introduced to keep homeless figures down. Central govt sees homelessness purely as a local govt problem and has no difficulty in passing legislation that makes homelessness significantly worse.

      And I return to the general pointlessness of landlords adopting a conspiracy theory position. Everyone is against you, the tenants, the courts, the government, councils, letting agents and the Inland Revenue. Landlords are the most put upon business in the country. Etc. If you really can’t see how unattractive that kind of special pleading is to anyone who isn’t a small landlord, you frankly deserve to lose the political arguments.

  27. Giles, Can you clarify for me if any changes have been made to the notice requirements for tenants – one of my client tenants has been told by the managing agents that, as with landlords now, notice from a tenant once the AST has gone periodic does not have to expire on the last day of a rent period – I can find no reference to this in the recent changes. Can my client tenant give a months notice to expire on any day or does it still have to be the last day of a period?

  28. Am I right in thinking that a s21(4) NRP in relation to a weekly periodic tenancy that started say in 2014, if served BEFORE 1st Oct 2015, and does NOT specify the last date of the period of the tenancy will now be valid? S21(4ZA)?

    The date in force of s21(4ZA) is 1st Oct 2015 – Deregulation Act 2015 (Commencement No 1 and Transitional and Saving Provisions) Order 2015 (SI 2015/994). It doesn’t say applies to tenancies commencing AFTER that date? Or NRPs served AFTER that date, presumably it applies retrospectively?

  29. hi, i have been a tenant in my present home for 15 years, my 2 year tenancy is about to run out on the 20th jan, i was served a section 21 at the start of the tenancy jan 2014, under the new rulings of 1st oct 2015, is this section 21, still legal?, thank you in advance

    • Assuming it was not invalid for some other reason (deposit protection failures etc), and the s.21 is itself correct, then yes. The Deregulation Act provisions are only for tenancies starting on or after 1 Oct 2015 (until 1 Oct 2018, when all are caught).

  30. Latest on this….I have a potential retaliatory eviction..what I can’t work out from the Act is the status of a s21 notice between tenant complaining of disrepair and EHO serving notice…in my case EHO dragging their feet..has anyone had any similar cases or thoughts on this?

    • The notice remains valid until improvement notice served, then becomes invalid (unless a possession order has been made in the meantime).

  31. I guess if EHO has made it clear that an Improvement Notice may be served that may be grounds to ask the court for some form of adjournment or suspension of a possession order – awaiting the outcome of EHO involvement?

    • Certainly worth asking for an adjournment. DEFINITELY NOT an SPO, as any possession order made remains valid if improvement notice served after PO made.

  32. Thanks Giles…however the omission of the word ‘and’ at the end of subsection2 (iii) immediately before subsection 2 (iii) (c) is the confusing bit..if it said ‘and’ then it would be sui generis…if your view of it is the way the Act should be read then as you opined in the first blog we are in the hands of a very underfunded EHO department at all stages!

    • Yes, that is exactly what it is. The steps are sequential and all required. That is why 2(c) starts ‘the tenant then made a complaint..’. The list at 2. are not alternatives.

    • If it is an AST that began on or after 1 October 2015 – which it has to be for the retaliatory eviction provisions to apply – more fertile ground to knock out the s.21 may be checking whether gas safety cert, EPC and the ‘How to Rent’ booklet were all properly served.

  33. Are you sure that the retaliatory eviction provisions only apply to new tenancies? It is clear that the new prescribed requirements do but the retaliatory eviction applies to any s21 , surely?

  34. thanks Giles…I hadn’t got around to reading the whole Act yet! Understandable that all the new prescribed information and certificates should not be retrospective but unusual that such a regulation would exclude s21 notices just because the tenancy started before 1st October…..retaliatory eviction is the same whether your tenancy started before of after October 1st. will all be academic within a year I suppose.

  35. if a landlord gives 2 months s.21 notice to a tenant on a periodic assured shorthold tenancy when there is not a valid gas safety certificate for the premises, is that notice legal and if not does it automatically become legal once a gas safety certificate is obtained and issued to the tenant, or does a new s.21 notice have to be issued to the tenant after the gas safety certificate has been issued.

    • The requirement for a gas safety certificate for a valid s.21 only applies to tenancies that started on or after 1 October 2015. Assuming it is one of those tenancies, then the s.21 is not valid and a new one would have to be served after the gas safety certificate has been provided to the tenant.

  36. My tenancy started in 2012 – started as a fixed term and become a periodic monthly tenancy sometime in 2014. I have just been served notice under section 21 where the end date is earlier than the last date of the tenancy.
    Is this a valid notice, given that you mention the new regulations are only applicable to new tenancies after 1st October 2015 and mine is not ?

  37. Thanks, Giles.

    But can you clarify if Section 21 (4ZA) Housing Act 1988 is applicable only for tenancies after 1st October 2015. Your article implies that but it is not clear from the Deregulation act, unlike the The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, which clearly states that it is applicable only to tenancies after 1st October

  38. Please can someone help me! Re the section 21 can’t be served in the 1st 4 months but I need to get the tenant out now! Does this mean if she moved in on 01/10/15 I have to serve the 2 month notice section 21 on 31/01/16?? Please help! 😃

    • 1 Feb. But even before these changes, a s.21 couldn’t expire until the end of 6 months. You do realise the tenant doesn’t have to leave at the end of the 2 months notice?

  39. Do the retaliatory eviction provisions only apply to post 1 Oct 15 tenancies? Do you know where the authority for this is as I can’t see it. Thanks

  40. Can you serve the S21 if the tenant has failed to allow access into the home for the starter visits specifically the one month and six month visits or should this be Persued via normal possession procedures. Obviously you would ensure your records show that you have done all you can to gain access to the property. I would be looking to serve the notice at 4 month period if going down the s21 route.

  41. What does renewed after October 2015 mean exactly? Does it just mean when the Tenancy Agreement goes periodic or is it “renewed” every time the rent is increased?

    • As per the post:

      “By new, that means new – not a statutory periodic arising after 1 October, which is specifically excluded. But will include a ‘renewal’ tenancy – a fresh AST – granted on or after 1 October.”

  42. I would argue that as agents commonly refer to periodic tenancies as ‘monthly rolling contracts’ that the tenancy agreement is in fact renewed each month. I am curious whether anyone as tested this yet.

  43. if housing benefits contribution to a tenants rent is accepted after a s21 has expired with tenant still in possession will this affect the s21’s validity

    • No, of course not. The tenancy continues until the tenant leaves or until possession order and eviction, as does the rent liability.

  44. Landlords often complain on their various websites/forums of all the ‘red tape’ they have to comply with and how it’s all so very unfair (it’s really not).

    But the comments over the last 3 months or so on this blog, many of which are clearly from landlords, really shows up what’s gone wrong and is part of the reason they’re now starting to get a (tiny) bit of a ‘hard time’ (like not being able to retaliatory evict in a very limited number of circumstances – how awful!).

    So many of them just haven’t got a clue.

  45. Can you clarify something for me please? You say in this article

    “End date for a section 21 notice. The new section 21(4ZA) Housing Act 1988 removes the need for any s.21 notice, even under s.21(4)(a), to expire on the last date of a period of a tenancy (at least in England). Two months notice (for a weekly or monthly rent period) is all that is required.”

    Does this mean that the dates on the section 21 for a periodic pre 1st Oct 2015 still need to be worked out, if so can you tell me what they are?

    I always believed it has to be 2 rent periods – For example rent is due on the 1st so the notice runs 2 months from the 1st being the rent date?


    • Same as it ever was, two months notice expiring on the last date of a period.

      But if it was a fixed term that went statutory periodic, could serve a s.21(1)(b) notice instead, as per Spencer v Taylor.

  46. I have a tenancy commencing 1 Dec and ending 31 May. I currently don’t intend to renew it and will serve a s21 notice. As I can’t serve it within the first four months, it can’t be dated before 1 Apr, but as two month’s notice has to be given, it can’t end the tenancy by 31 May, allowing for service.

    Is there a ‘deemed’ date of service where the notice is sent by post? The only way I can end the tenancy on 31 May seems to be to serve the notice by hand on 1 Apr and get the tenant’s acknowledgement of service – but that depends upon the tenant’s co-operation…

    Does a tenant have any obligation to give notice that they do not seek to remain in a property at the end of a fixed term? It seems daft that I might be serving notice to end a tenancy on 7 Jun, when the tenant may be expecting to leave, anyway, on 31 May, having not negotiated any renewal of the term.

    • As noted in the post, the effect of the Act is that you can’t give notice that expires on the last day of the fixed term for post 1 October 2015 tenancies. But it can expire the day after. Rent pro rata for the extra day, I guess.

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