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.