[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.)