Errata – AST regulations and non-existent requirements.

Yes, there is indeed a backlog of cases to write up, covering issues from who pays for cladding removal, through Tribunals and the Human Rights Act, to the proper venue for a claim for accommodation pending s.204 appeal where there was no review decision. But a) busy and b) today at least, ill (just a cold, no need to send flowers).

So instead, here is a potential issue with legislation on assured shorthold tenancies, due to hit in October.

Deregulation Act 2015 section 41(3) provides (in regard to sections 33-38 and 40)

At the end of the period of three years beginning with the coming into force of a provision of sections 33 to 38 or section 40, that provision also applies to any assured shorthold tenancy of a dwelling-house in England—
(a) which is in existence at that time, and
(b) to which that provision does not otherwise apply by virtue of subsection (1) or (2).

This includes the ‘compliance with prescribed legal requirements’ at section 38, or what is now s.21A Housing Act 1988 (though not the prescribed information requirements at s.39/s.21B).

So, the purpose of this section is that the prescribed legal requirements that have applied to all post 1 October 2015 assured shorthold tenancies will apply to all ASTs or statutory periodic tenancies in existence on 1 October 2018, regardless of when they started.

The prescribed legal requirements are set out in The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 at s.2 – gas safety certificates and EPCs. (There are issues around this, as noted here. No retrospective compliance?)

But. But, but, but. The 2015 regulations state, at s.1

(3) Subject to paragraph (4), these Regulations apply in relation to an assured shorthold tenancy of a dwelling-house in England granted on or after 1st October 2015.

(4) These Regulations do not apply to an assured shorthold tenancy that came into being under section 5(2) of the Housing Act 1988 on or after 1st October 2015 on the coming to an end of an assured shorthold tenancy that was granted before that date.

As far as I can see then, come 1 October 2018, section 21A Housing Act 1996 will apply to all existing ASTs/SPTs, but there will actually be no prescribed legal requirements for pre 1 October 2015 tenancies, (or any statutory periodic tenancies that started after 1 October 2015, but following an AST fixed term that commenced before 1 October 2015), because the requirements are set out in regulations that expressly exclude those earlier tenancies.

So some landlords will have to comply with prescribed legal requirements that don’t exist, at least for their tenancies.

Maybe there will be new regulations before October 2018? Maybe, even, those new regulations might address the gas safety certificate (and maybe EPC) issue – clarifying one way or another – because heaven knows that one needs sorting out quickly.

If there aren’t new regulations, lawyers are going to have a field day. And this is not necessarily a good thing.

 

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 +.
Posted in Allocation, Assured Shorthold tenancy, Housing law - All.

14 Comments

  1. Thanks Giles. Not sure I quite get the problem as to me this makes perfect sense? The act applies to all post Oct 2018, so everyone has to use the Form 6A notice. However, subsection 3 and 4 of the regulations dis-apply the requirement to supply the gas safety record and EPC for those tenancies where this should have initially been done before this requirement was prescribed (essentially not making it “retrospective”). I understand the problem from the Assured Properties case, though that is different from this in that they were post Oct 2015 cases. As I understand it neither Assured Properties nor Caridon Properties clarified the effect of a new tenancy or a new gas safety record (so that you were then within the 28 day rules) on that initial breach. Perhaps any clarification could address that.

    • If that was the intent, then s.38 (s.21A) should simply have been left out of s.41(3) Deregulation Act, in the same way that s.39 (s.21B) was.

    • Thanks. I would see the option of leaving it out altogether as simply a different way of dealing with it but what might be called a “blunter” way. The solution they have used allows them, by regulations to exclude some prescribed requirements (as they have chosen to do with gas safety and EPC) but not to exclude other prescribed legal requirements (maybe in the future having a valid EICR test report). Thanks

    • No, those are the ONLY prescribed legal requirements arising from s.38. I take your point about future ones, but then why not do the same with s.39?

  2. So if I understand this correctly, the s39 prescribed info wont need to be served before s21 can be served if the tenancy pre-dates October 15 or any subsequent SPT but the requirements for the use of the new form 6A (s35) will apply post Oct 2018, as will the time limits (s36) but the form 6A wording mentions the details set out in s39 which will be excluded for older tenancies.

    Plus, the new accelerated application form N5b will also be misleading, as it relates to all requirements of the Dereg Act,

    Am I going mad or misinterpreting?

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  4. Morning Giles

    I am sure you did this just so we get the same headache that your cold has given you

    It certainly does seem to be oxymoronic law, the question is whether this was deliberate.

    Just to clarify, you are thinking that the

    The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015

    Needs an amendment to include all tenancies in existence after Oct 1st 2018?

    and maybe something for the 28 Gas Snafu

    My understanding was that it was going to be retrospective to all tenancies in force after Oct 2018, not sure I even spotted the 5(2) exclusion for SPT’s in (2)

    I have to say that S41 does seem to be designed as catch all loop by (3)

    in Plain English

    1 Subject to 2 & 3 Only new tenancies
    2 Subject to 3 Excludes SPT’s pre Oct 2015
    3 After 3 years ALSO applies to anything that exists and which was previously excluded

    So the intent seems clear,

    41 Application of sections 33 to 40

    (1) SUBJECT TO SUBSECTIONS (2) AND (3), a provision of sections 33 to 40 applies only to an assured shorthold tenancy of a dwelling-house in England granted on or after the day on which the provision comes into force.

    (2) SUBJECT TO SUBSECTION (3), a provision of sections 33 to 40 DOES NOT APPLY to an assured shorthold tenancy that came into being UNDER SECTION 5(2) OF THE HOUSING ACT 1988 AFTER THE COMMENCEMENT of that provision and on the coming to an end of an assured shorthold tenancy that was granted BEFORE THE COMMENCEMENT OF THAT PROVISION.

    (3) At the END OF THE PERIOD OF THREE YEARS beginning with the coming into force of a provision of sections 33 to 38 or section 40, that provision ALSO applies to ANY assured shorthold tenancy of a dwelling-house in England—

    (a) WHICH IS IN EXISTENCE AT THAT TIME, and
    (b) TO WHICH THAT PROVISION DOES NOT OTHERWISE APPLY BY VIRTUE OF SUBSECTION (1) OR (2).

    :) NOTE: Caps only used to emphasize :)

    • The intent of s.41(3) is perfectly clear. It applies sections 33-38 and section 40 Deregulation Act to all ASTs from 1 October 2018.

      S.39 (which is s.21B in HA 1988 as amended) is not so applied.

      But s.38 (s.21A in HA 1988) applies ‘prescribed legal requirements’ which are to be prescribed by regulation – that is the job of the 2015 regulations.

      But those regulations specify only applying to post 1 October 2015 tenancies (leaving out the SPT complication for now).

      Thus, there are no prescribed legal requirements that apply to pre 1 Oct 2015 tenancies from 1 Oct 2018.

      I don’t think this was deliberate because otherwise s.38 could simply have been omitted from s.41(3) as s.39 was.

  5. HI Giles,
    Well, I’m sure I am having a blonde moment for this.

    So AST pre Oct 2015 that become SPT prescribed legal requirement doesn’t apply
    But all Oct 15 onward, it applies to including any that became SPT?

    I may need a lie down in a dark room

    • That is the current position – any tenancy starting on or after 1 October 2015 (including subsequent SPTs) – the prescribed legal requirements apply
      Any pre 1 October 2015 tenancy that then became SPT after 1 October 2015, they don’t apply.

      What happens on 1 October 2018 is, shall we say, unclear – hence the post. Technically prescribed legal requirements will apply to all ASTs (And SPTs) in existence on 1 October 2018. But unless the Regs are changed, there won’t be any specific prescribed legal requirements for pre 1 October 2015 tenancies.

  6. Form 6A is also prescribed by the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 as amended by the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015, by amending the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015.

    While the Forms Regulations is not restricted, the application restriction in reg. 1 of the Notices and PR Regulations looks to me to apply to the whole Notices and PR Regulations including where it prescribe Form 6A. Does this not mean Form 6A like the prescribed requirements that is subject of this article has only been prescribed for tenancies from 1 October 2015 (excluding SPT etc. etc.) even after 1 October 2018?

  7. Pingback: How to Understand Which Section 21 Rules Apply From October 2018 | GRL Landlord Association

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