HMCTS have released a new N5B claim form – the claim form for accelerated possession proceedings after service of a section 21 notice. The new form (finally?!) takes into account all of the post 1 October 2015 changes to the validity of a section 21 notice.
The new form requires the landlord to complete confirmations that:
- The property is licensed, if it is required to be
- An EPC has been provided to the tenant (and when)
- The gas certificate (if required) has been provided (and when)
- For private landlords, the ‘How to Rent’ Booklet has been provided (and when and how)
- All the deposit requirements have been complied with (and when)
- There has not been a ‘relevant notice’ (Improvement Order or Emergency Remedial Order) served and…
So, finally the N5B now reflects the statutory obligations and asks the landlord to confirm those requirements to the court. This must be used for accelerated possession claims now, and most certainly for any tenancy (or renewal tenancy) that started on or after 1 October 2015.
Also, new N11B defence form – here.
There also seems to be a new Welsh form covering the position under the H(W)A Pt 1 licensing
q7 re deposit protection
7. The following section must be completed in all cases.
(a) Was a money deposit received in relation to the tenancy or in relation to a
tenancy directly or indirectly replaced?
Yes No
If Yes, complete the following:
(b) on what date did the fixed term come to an end? D D M M Y Y Y Y
(c) has the landlord protected the deposit by lodging it in a Tenancy Deposit
Scheme(TDS) authorised under Part 6 of the Housing Act 2004?
Yes No
(d) when was the deposit lodged? D D M M Y Y Y Y
(e) what is the deposit reference number?
(f ) is a copy of the TDS certificate attached? Yes No
(g) has the landlord given the tenant the prescribed information in relation to
the deposit and the operation of the TDS?
Yes No
(h) on what date was the prescribed information given? D D M M Y Y Y Y
(i) has the deposit been repaid to the tenant? Yes No
If Yes, on what date was it repaid D D M M Y Y Y Y
Have I missed something? What about deposit protection by insurance rather than lodging it?
kjetilniki
Fair point, but I think ‘lodging’ would extend to submitting details to an insurance scheme.
Thank you for publishing this.
I note that the government wizard https://www.gov.uk/accelerated-possession-eviction to help claimants complete N5B has NOT been updated and is still generating the old N5B form. Also, what about claims pursuant to pre-Deregulation Act tenancies which won’t come under the Deregulation Act until 1 October 2018 – can the old N5B still be used for those in the meanwhile?
I would imagine so. But the old N5B may not be available much longer, plus a busy DJ may wonder why not on the current form…
Current N5B form for a property located in Wales:
http://formfinder.hmctsformfinder.justice.gov.uk/n5b-wales-eng.pdf
Yup, yet another red-tape reason to increase the rate of rent.
Well it has been the case since 1 October 2015…
I suppose so — but this reinforces and codifies something which (it seems to me) is not a part of usual law.
It is not generally for a judge to make a case for either the claimant or the defendant (including on procedural grounds) when that party does not choose to make that case. Every eviction process that has ever concerned me has involved a tenant who actively wants to be evicted rather than to leave voluntary for evident reasons.
It seems to me that it should never be the case that a judge should invent procedural grounds (the S21 was served one day late, or was served by hand, or the deposit was provided in part by a charity etc etc etc) if the parties do not choose to make that case.
What this does is to leave such a tenant with no other option than to create some other ground for eviction by the landlord (by not paying rent or through some other method). This does neither of the parties any good at all – the tenant is left with a shredded reputation, and the landlord is left with a financial impact that will simply get passed on to other tenants in the grand scheme of things. The only beneficiary to this facilitated theft is the local authority (who is not party to the proceedings).
Eh? This makes no sense. It is not the judge making a case for or against anyone, it is the landlord certifying that they have met the statutory preconditions to be able to serve a s.21 notice.
But you could say this about almost everything else where there is a precondition to serving something.
By way of random example serving a s.22 notice is a statutory prerequisite to an application under s24 for a lessee to seek appointment of a manager.
As with s.20 there are a variety of ways in which s.22 notice can be faulty. But the lessor is not compelled to accept a court/tribunal imposed quashing of a case because there is some fault with the s.22. The Lessor may be perfectly happy to accept the s.22 and to proceed, and may be much more concerned about a different choice of manager/different term of appointment and so on. And the FTT will not disagree and compel the lessee to serve another s.22 under most circumstances…..
So what is there in the different wording of the legislation that makes it possible for a freeholder (the defendant) to accept that a s.22 notice is acceptably regarded as giving notice?
In the case of s.21 the quashing occurs on the basis of a form without any agreement of the defendant — suppose the landord were to say that a deposit was collected and was not protected, and the tenant were to say that no deposit was collected at all. Or the landlord were to say that a complaint was received about some maintenance, and the tenant were to say that the maintenance issues were of no relevance or were invented. You might say this is unlikely, but who is the court to pre-judge.
Short answer – the equivalent in section 21 terms would be that the tenants leave on expiry of the s.21 notice!
Longer answer – not comparable at all. A defective notice is different to the statutory prohibitions on a s.21 being served at all. It is not a question of condoning an error or two in the notice, but that the notice is a nullity because it could not be served.
Plus, I’m pretty sure the Tribunal could throw out an application based on a defective notice regardless of the landlord’s position.
there’s a new N11B defence form too! (they’ve thought of everything) https://formfinder.hmctsformfinder.justice.gov.uk/n11b-england-eng.pdf
I note it says ‘EPC has been provided to tenant and when’. How does this apply to HMOs that currently do not require an EPC (as per guidance from Communities and Local Government)?
Tick no? You have to say whether an HMO at part 6.
What is the position re EPC where the property to be let is not an entire building e.g. is a room or e.g. a s/c flat? What do people think?
Nathalie’s posting brought this to my mind for the first time.EPC was required for any flat or house.
The national HMO network at http://nationalhmonetwork.com/energy-performance/ say
“Which HMOs need an EPC?
There has been some confusion over how the regulations apply to HMOs, but guidance from Communities and Local Government is that landlords who have an HMO, with shared essential facilities(bathroom, shower, toilet and/ or kitchen) and who have individual tenancy agreements with their tenants do not need to provide an EPC unless they sell the house or let it as one whole dwelling, or convert it to self-contained units.”
The ever excellent Tessa J Shepperson at her Landlordlaw blogsite discusses the issue (March 21, 2016) without a conclusion at http://www.landlordlawblog.co.uk/2016/03/21/hmo-landlords-need-provide-epc-room-rentals/
My thoughts are that the Landlord is required to comply with reg 6(5) only for buidings…?
The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI № 1646
2.—(1) Subject to paragraph (2), the requirements prescribed(1) for the purposes of section 21A of the Act are the requirements contained in—
(a)regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012(2) (requirement to provide an energy performance certificate to a tenant or buyer free of charge); and…..
Reg 6(5) Energy Performance of Buildings (England and Wales) Regulations 2012says
(5) The relevant person must ensure that a valid energy performance certificate has been given free of charge to the person who ultimately becomes the buyer or tenant.
This is in the context of reg 6 as a whole including 6(1)
6.—(1) Subject to regulation 8, this regulation applies where a building is to be sold or rented out.
A building is defined in reg 2(1)
“building” means a roofed construction having walls, for which energy is used to condition the indoor climate;
“building envelope” means the integrated elements of a building which separate its interior from the outdoor environment;
“building unit” means a section, floor or apartment within a building which is designed or altered to be used separately; ….
“dwelling” means a building or part of a building occupied or intended to be occupied as a separate dwelling;….
Reg 6 requires epc to be made available to any prospective buyer or tenant—
There is an exception relating to a dwelling found in reg 8
8.—(1) Regulations 6 and 7 do not apply in relation to a dwelling which is to be sold or rented out where the relevant person can demonstrate that—
(a)the dwelling is suitable for demolition;
(b)the resulting site is suitable for redevelopment;
(c)all the relevant planning permissions, listed building consents and conservation area consents exist in relation to the demolition; and
(d)in relation to the redevelopment—
(i)either outline planning permission or planning permission exists, or both; and
(ii)where relevant, listed building consent exists.
I think in the overall context of part 2 of the regs that dwelling in this context means a building which is dwelling because the overall obligation applies to buildings and this is an exception.
I don’t know where DCLG gets the requirement to apply to a s/c flat see HMO network ref above.
Help?
Plenty of ambiguity in the Regs.
On one reading, Reg 6 applies for prospective purchaser or tenant of the “building”. Reg 2.1 makes clear that a ‘dwelling’ or ‘building unit’ is defined separately to ‘building’.
Or, if Reg 6 applies to a dwelling (which is not clear) then ‘dwelling’ is defined building or as a part of the building occupied as a separate dwelling – which is not the case in an HMO with shared facilities.
Yet there is the slippage from ‘building’ in 6 and 7 to ‘dwelling’ in 8. Sloppy drafting.
Nothing clear, I agree.
Hi, what happens if the tenancy is PRE- 01/10/15 all of the 8,9 and 10 questions do not apply?
If it wasn’t renewed after 01/10/15, yes. At least till 1 October this year, when it will apply to all.
following case of Minister v Hathaway & Hathaway [2021] EWCA Civ 936 can a 2008 tenancy that has not been renewed but the property ownership has changed use the n5b and enclose witness statement as to why there has not bee compliance with GSC/EPC/How to Rent etc.? or will this require n5 7 n119?
This sounds like very specific advice you are seeking. I suspect the answer is going to be a bit of a lottery depending on the district judge the form ends up in front of. To that extent, the N5 can’t be wrong, but then you don’t get accelerated procedure. ON the other hand, using an N5B runs the risk of the DJ putting it down for a hearing anyway.
So, you take your chances.
Thanks do you just ingore the questions on the N5B then? Or do you have to explain why not answering them?
No set answer. But considering will be read by a district judge in a hurry, might be worth explaining why not applicable.
Just had my n5 b struck out because new form had not been used however I downloaded this in November 2017 from government website so how could this happen. Also new n5b asks if we have been served with a relevant notice in relation to the condition of the property, we have received a letter from council at the informal stage does this mean we have to still complete question 8. a to g or not
Any advice would be greatly appreciated.