Autumn – mellow fruitfulness and new section 21 rules

When we reach 1 October 2018, provisions of the Deregulation Act 2015 come into force, affecting all assured shorthold tenancies that commenced before 1 October 2015. Quite what those provisions are is a bit complicated, and may yet be subject to further change, but this is what it currently looks like.

What will happen is that section 41 Deregulation Act applies sections 33 to 40 of the Act to all assured shorthold tenancies from 1 October 2018, where previously it was only new or renewal tenancies commencing on or after 1 October 2015 that were caught. But how those sections will apply (or indeed not) is varied, particularly in relation to the Regulations giving effect to those sections.

What follows is our current best guess, unless there are new regulations.

Prescribed section 21 Notice

The prescribed form 6A will have to be used for all section 21 notices after 1 October, regardless of start date of the tenancy.

Limited validity of section 21 notice

While the ‘can’t be served within first four months of a tenancy’ provision is somewhat otiose for pre 1 October 2015 tenancies, the ‘use it or lose it’ provisions will apply. Possession proceedings would have to be issued within 6 months of the date of service of a section 21 notice (assuming a weekly or monthly rental period), after which the notice will become invalid.

What about a s.21 notice served before 1 October 2018 but expiring afterwards? A simple answer is I’m not sure. But a strict reading of s.36 Deregulation Act and the new s.21(4D) Housing Act 1988 would suggest they might apply. So for landlords and agents, I’d suggest assuming that the ‘6 months from service’ limit does apply – so this will encompass notices served now, or indeed any served after 1 August 2018.

Retaliatory Eviction

The retaliatory eviction provisions will apply to all assured shorthold tenancies from 1 October 2018. This means that

a) No section 21 notice can be served within the six months after a Local Housing Authority has served an Improvement Notice or an Emergency Remedial Notice.

b) Where a tenant has made a written complaint about conditions of the property, the landlord has failed to respond or rectify, but has served a section 21 notice, and the Local Housing Authority has subsequently served an Improvement Notice or Emergency Remedial Notice, then the section 21 notice is invalid (at any time prior to the making of a possession order).

We know b) doesn’t happen very often. More frequent is a).

Again, transitional effects aren’t clear for pre 1 October 2015 tenancies. What, for example, if an Improvement Notice was served on July 2018? On a strict reading of s.33 Deregulation Act, it would appear that the ‘ban’ on a s.21 notice would then apply from 1 October 2018 to 31 January 2019.

Similarly, in a b) scenario, if a s.21 notice was served before 1 October 2018, but a relevant Notice was served by the LHA after 1 October 2018, that would possibly invalidate the s.21. This is complicated by the required previous steps (tenant notice, service of s.21 etc.) possibly occurring before s.33 Deregulation Act has effect for pre 1 October 2015 tenancies. Again, any court decisions will come too late on this to be of any guidance, so my suggestion to landlords would be to presume that an LHA notice served after 1 October 2018 would invalidate a s.21 if the tenant had followed the requirements on notice of a problem.

Assorted prescribed information and documents

For post 1 October 2015 tenancies (including renewal tenancies) no section 21 notice can be served unless the tenant has been provided with:

i) The Energy Performance Certificate (possibly excepting HMOs – this is contentious)

ii) The gas safety certificate (where necessary – and, as things stand, probably must have been served at the start of the tenancy initially. See Caridon Properties Ltd v Monty Schooltz), and any 12 month inspection certificate after that.

iii) The ‘How to Rent’ Guide.

What will this mean come 1 October 2018?

As things currently stand, for pre 1 October 2015 tenancies, none of this will apply. While sections 38 and 39 Deregulation Act 2015 (prescribed information and prescribed legal requirements) will apply for pre 1 Oct 2015 tenancies, they will have no content – the prescribed information and requirements are to be set out in regulations and, as it currently stands, the only regulations are The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. These specify that the regulations only apply to tenancies starting on or after 1 October 2015 (and not statutory periodic tenancies starting on or after 1 October 2015 from a pre 1 Oct 2015 fixed term either).

So, unless there are further or amended regulations, there will be no requirement to have provided an EPC or How to rent Guide for a pre 1 Oct 2015 tenancy in order to be able to serve a s.21 notice. (Edit – for clarity, the How to Rent Guide would never apply as s.39 Deregulation Act is not brought in for pre 1 Oct 2015 tenancies).

The requirement for a gas safety certificate before occupation and within 28 days of the 12 monthly check is, of course, set out in the gas safety regulations. But while not meeting that requirement may give rise to a criminal prosecution, it does not invalidate a s.21 notice for a pre 1 October 2015 tenancy. At least as things now stand.

Conclusion

Well, what can I say? It is a bit complicated. Particularly on the ‘transition period’ with s.21 notice served before 1 October 2018. There may also be new regulations on prescribed and required legal information, though none have been laid yet.

The best bet for landlords and agents is to presume that the transitional period applies retrospectively, as outlined above. I would assume that there will be challenges along those lines. Any judgments on the transition will arrive far too late to be of practical use for others (landlord or tenant) though.

But one can be reasonably sure that there will be a lot of landlords and indeed agents, who don’t get or miss the 1 October 2018 date, when all ASTs will be caught by the Deregulation Act changes.

Also, I’m going to have to update the s.21 notice validity flowchart. (See link in top menu.) And that is going to be a pain.

 

 

 

 

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

27 Comments

  1. Couple of comments.

    Firstly, section 41 does not introduce section 39, the prescribed information, how to rent guide, for pre-October 2015 tenancies. It is specifically leaves it off the list (33-38 and 40).

    Secondly, the Form 6A is prescribed in the same regulations as the “Prescribed legal requirements” which start by limiting their application to post Oct 15 tenancies (accepting it was shortly updated by the amendment regs). We have been in dialogue with MHCLG over these points for time time, even providing them with a suggested update Form 6A. They have email back saying they do not, at this time, plan to produce new regulations and they do NOT intend the prescribed form or prescribed legal requirements to apply to pre 2015 tenancies (and this would accord with a reasonable reading of the legislation.

    Thirdly, in respect of the use it or lose it provision, the legislation address the date of the court application, not the date of the serve of the notice so I would presume it was a fair assessment to say that a notice served under the pre October 2015 rules and still sitting on file will effectively die on the 1 October 2018 as regardless of the notice sitting on file you cannot take court action? Any notice served since May, even on a pre October 2015 tenancy, will only have the “residue” of 6 months once you pass 1 October 2015.

    Fourthly, agree about retaliatory evictions but had not thought about where the process may, or may not, already be in process. Having said that the lack of the use of the process probably indicates that may not be too much of an issue.

    • Prescribed information – true. Was making the general point that, as things stand, none of the prescribed info and legal requirements would apply (EPC, Gas safety cert).

      Form 6A – no, the AST Prescribed Info Regulations amend the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 to specify Form 6A, without limitation to post 1 Oct 2015 tenancies. When section 37 of the Deregulation Act comes into force for all ASTS, then there is a form (6A) prescribed by regulation – the 2015 Forms Regulations. So this will take effect.

      Time limits – yes, I’d agree with that. The time limits would have retrospective effect because it is the issue of proceedings that is specified.

      Retaliatory eviction – a small issue for a short time, I suspect, but messy if that happens.

  2. I willing bow to your superior understanding but my understanding of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 is that they only apply to post Oct 15 tenancies (as stated in reg 1(3) and (4). Therefore, the change in regulation 4, the insertion of the Form 6A into The Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 by reg 4(2) does not apply to pre October 2015 tenancies. As I say MHCLG confirmed to me that this is their understanding too, for what it is worth.

    • It can’t work that way. The Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 are amended. There is nothing in that amendment (ie, within the amended 2015 Forms regs themselves) that limits its application to post 1 October 2015 tenancies.

      You can’t have an amendment which is there for some tenancies but not there for others – without the amended regs specifying this.

      So, when Dereg Act s.37 applies to all tenancies – ‘SoS may prescribe form of notice by regulations’ – and there are the regulations prescribing the notice.

      Look at it this way, it is not the The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 that prescribe use of Form 6A.

      Or this way – what do the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 say if you have a pre 1 Oct 2015 tenancy? Is that section – Reg 3(fa) – missing?

    • I can see that the the amendment regs amend the Form 6A. Reg 2 specifically says 2.—(1) The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015(1) are amended as follows. (2) For the form in the Schedule substitute the form in the Schedule to these Regulations.

      It does not seem to say anything about the application of the first set of reg. The first set of regs (reg 1(4)) clearly says that these regs only apply to post October 2015 tenancies, and I simply took it that it includes reg 4, the amendment to the prescribed form, as it is not excluded.

      Re your comment below on 3(fa), I agree it is not the The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 that dictate the use of a prescribed form. Section 37 says you have to use a form prescribed form. The regulations simply say that for post Oct 15 tenancies the prescribed form is in the schedule. However it does not say that this form is prescribed for pre October 2015 tenancies. This simply leaves us in the same position as we are today, there is a prescribed form for post October tenancies and there is not one for pre October 2015 tenancies. This is not so unusual where legislation creates a power (licensing of estate agents for example) that has never been exercised. I agree it would be unlikely that you would have different prescribed forms and the most likely solution would be a revised form. As I mentioned we even sent a drafted one to MHCLG.

    • Here is section 3 of the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 as currently in force:

      The forms prescribed for the purposes of Part I (rented accommodation) of the Housing Act 1988 are—

      (a) for a notice under section 6(2) proposing terms of a statutory periodic tenancy different from the implied terms, Form No 1;

      (b) for an application under section 6(3) referring a notice under section 6(2) to a tribunal, Form No 2;

      (c) for a notice under section 8 informing a tenant or licensee that the landlord intends to begin proceedings for possession of a dwelling-house let on an assured tenancy or an assured agricultural occupancy, Form No 3;

      (d) for a notice under section 13(2) proposing a new rent for an assured tenancy of premises situated in England, Form No 4;

      (e) for a notice under section 13(2) proposing a new rent or licence fee for an assured agricultural occupancy of premises situated in England, Form No 5;

      (f) for an application under section 13(4) referring to a tribunal a notice under section 13(2) relating to an assured tenancy or an assured agricultural occupancy, Form No 6;

      [(fa) for a notice under paragraph (1) or (4) of section 21 informing a tenant that the landlord intends to seek recovery of possession of a dwelling-house let on an assured shorthold tenancy, Form No 6A;]

      (g) for an application under section 22(1) to a tribunal for a determination of rent under an assured shorthold tenancy, Form No 7;

      (h) for a notice under paragraph 7 of Schedule 2A, by the tenant to the landlord proposing that an assured tenancy be replaced by an assured shorthold tenancy, Form No 8;

      (i) for a notice under paragraph 9 of Schedule 2A, by the landlord to the prospective tenant, proposing an assured shorthold tenancy where the tenancy meets the conditions for an assured agricultural occupancy, Form No 9.

      There is nothing in there that says 3(fa) only applies to post 1 Oct 2015 tenancies, or that it only applies to tenancies as specified by the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015

      The reason why 3(fa) has not applied to pre 1 October 2015 tenancies is because section 37 Deregulation Act – the power to prescribe the form of notice – was limited to post 1 October 2015 tenancies by s.41(1) Deregulation Act. Once that limitation is lifted by s.41(3), so that s.37 applies to all ASTs, then 3(fa) operates to prescribe the form.

      If it were to be limited to post 1 October 2015 tenancies, there would have to be something express in s.3(fa).

      Your version would mean that there are two versions of the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 in existence at the same time, one with 3(fa) and Form 6A in the schedule and one without. You are reading the the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 as only amending the Forms Regulations for post 1 October 2015 tenancies. That cannot be the case.

      (Another version of the argument would be that s.4 of the Prescribed Requirements Regs is not, in itself, a regulation, it is an amendment of another Statutory Instrument, so s.1(3) does not apply.)

    • Sorry, I can’t really add anything to my previous post. It reads to me that 3(fa) applies to post October tenancies (as the regs defining it says these changes only apply to post Oct 15 tenancies) and there is no form prescribed for pre October 2015 tenancies. This is then leaves us in the same situation as we have had for the last three years, a prescribed form for post Oct 15 tenancies but not for pre Oct 15 tenancies. It does not require two different prescribed forms. This is consistent with the wording of the prescribed form which says you are not required to use it for pre Oct 15 tenancies (but can if you want).

    • I didn’t say it meant two prescribed forms, but that your reading results in their being two different versions of the prescribed forms regulations. You can’t have an amendment that is only inserted for post 1 Oct 2015 tenancies. (You could have an amendment that stated on the text of the amendment that it only applied to post 1 Oct 2015 tenancies, but that is not what has been done.)

    • Very fair comment. There would seem to be two possible problems, either the forms says it does not apply to pre Oct 15 tenancies or else the 3fa part of the regs don’t apply (because the regs that put 3(fa) says the change does not apply to pre Oct 15 tenancies). Not sure how they plan to reconcile that. I guess we will have to see if we get any meaningful court judgement on that. Having spoken with MHCLG they have said they do not intend the changes to apply from Oct (accepting that what the law says is what matters).

    • Yes, as you say, this is all pending meaningful judgments. Though anyone would still be well advised to use Form 6A anyway, as it can’t hurt…

    • My advice at the moment is to use form 6A as it will avoid this argument (which while interesting to lawyers is, lets face it, not worth having if you are a landlord).

      That said I agree with David. Section 37 merely gives the Secretary of State the power to make regulations to prescribe a form. Until 1 October 2018, it was not possible to do that for tenancies that pre-dated 1 October 2015. All s.41 does is to now give the Secretary of State the power to make regulations in respect of pre-October 2015 tenancies (which has not, and apparently will not, be done).

      Thus far the SoS has passed the 2015 Regulations (which expressly state only apply to post 1 October 2015 tenancies).

      I note the point about 2015 forms regulations not limiting the tenancies to which the form applies, but that was surely the case before 1 October 2018 also.

      It all comes back to what s.41 has changed. All it has done is to allow the SoS to prescribe a form for pre-1 October 2015. Until he does that, then nothing has actually changed.

    • Agree on using 6A anyway.

      The forms regs haven’t changed since 2015 yes, but what has changed is the application of s.41. So prior to 1 October 2018, it didn’t matter (for pre 1 Oct 2015 tenancies) that there was a prescribed form…

    • To be fair it is not the definition of an HMO that changes, it is the definition of which HMOs need mandatory licensing that is changing.

  3. This is from RICS:

    The main changes are:
    ◾Altered definition of an HMO under the Housing Act 2004: for licensing purposes, from 1/10, an HMO will be any property occupied by five or more people, forming two or more separate households.

    This contrasts with the existing HMO definition which is a property occupied by 5 or more people, forming two or more separate households and comprising three or more storeys.
    ◾If you already have an HMO license under the current definition, this will continue to be valid until the license expiration date (usually 5 years from date of issue). After the expiration you will need to apply for a new license as usual.
    ◾If you currently let an HMO which didn’t previously require licensing but will do after the new order comes into effect later in the year, then you will need to apply for a license through the local council.
    ◾There is an important exception: if the property is in a purpose-built block of flats comprising 3 or more units
    ◾Regulation 2 introduces minimum room standards for those properties falling within the scope of mandatory licensing.

    • Yes but I think this is more about sloppy writing by a PR person rather than a legal examination of the rules. My previous comments stands, it does not change the definition of what is an HMO, it changes the definition of which HMOs fall into mandatory licensing. there is a clue in your first line above where it says “Altered definition of an HMO under the Housing Act 2004: for licensing purposes” note the “for licensing purposes” which gives a clue.

  4. The rooms sizes (and refuse requirements) are both new, however I was interested that they are defined as applying to Part 2 licensing. This will therefore make them apply to mandatory and additional licensing. Your other post (Still more on 1 October – HMOs, storeys and rooms) refers to selective licensing but I think the changes are only for part 2 (HMO) licensing and I cannot see any changes for Part 3, Selective licensing.

    • You are quite right – hasty reading on my part, as the insertion is to Schedule 4 (licences under Parts 2 and 3: mandatory conditions). But is does only apply to Part 2. Post amended.

  5. Pingback: Coming Up To Speed – AST Changes from 1st October 2018 – Coventry View

  6. HI,

    Have they actually published the new regulations and how this is all to actually apply. I assume that there must be a time frame for provision of the documents.

  7. While I still don’t necessarily agree with you that Form 6A is required for older tenancies, would it be too pedantic of me to come back to this to point out that I noticed that s37 of the Deregulation Act came wholly into force on 1 July 2015, not 1 October like all the others? So the “three years beginning with the coming into force” for Form 6A would had been 1 July 2018 if your interpretation on its application is correct.

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