Section 21 flowchart – now with grey areas

I finally updated the ‘validity of section 21 notices’ flowchart to take into account the 1 October 2018 changes.  I’ve also included grey areas (literally).

The ‘grey areas’ are where current case law, or the operation of statute, mean that things may change, or there is a question still to be decided between different views. This, naturally, is annoying for everyone, even including lawyers.

There may well be corrections and revisions to this version. I think it works, but there will inevitably be something I’ve missed or got wrong.

The updated flow chart is now on the resource page. Anyone who downloaded and used the previous version really should replace it, because Things Have Changed…

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.

11 Comments

  1. Don’t see what’s grey about it ? ( for Tenancies before 1/10/15, now after 1/10/18, a current Gas cert within last 12 months as you say, otherwise wouldn’t be valid… and EPC & H2R must be served Before a section 21
    ‘Simples’, isn’t it ?

    • How to Rent is still NOT a requirement for pre 1 Oct 2015 ASTs because it would not be possible to serve a document that did not exist at the time.

      However, although current legal opinion is that proof of service of gas safety certificates and EPCs isn’t required before s.21 either, IMHO I would nevertheless prefer to ensure proof of service of both first for the avoidance of doubt.

      Where an AST started before October 2015, but became statutory periodic after October 2015 (as opposed contractual periodic) I would regard the beginning of SPT as a new tenancy fully affected by the Deregulation Act as of October 2015.

  2. No, no, it isn’t. For pre 1 Oct 2015 tenancies, there is no penalty if no EPC. For pre 1 Oct 2015 tenancies, there is no requirement at all to provide the How to Rent booklet. For pre 1 Oct 2015 tenancies, it is still possible to serve a s.21 if gas cert requirements not met.

    Now look at what the grey areas I’ve identified on the flowchart actually are..

  3. So in short, No H2R, but De-Reg Act says EPC & gas required for All tenancies from 1/10/18, whereas the Tenancy P.I Act 2015 has not yet had a regulation passed to bring it into retrospective effect.
    Wonder how many County court judges are going to be clear, unanimous on this !
    Safest is to serve everything a couple of days before the Sec 21.
    Whllst legal kinds pontificate on the legislative c#ck-up, landlords will be wanting pragmatic advice.

    • No, still not right.
      For pre 1 Oct 2015 tenancies, even after 1 Oct 2018
      No H2R
      No s.21 penalty for not serving gas safety cert
      No s.21 penalty for not serving EPC
      Dereg Act says nothing about gas safety cert or EPC, it allows regulations to be made to specify prescribed info. No regs have been made for pre 1 Oct 2015 tenancies. However, the use it or lose it s.21 provisions in the Dereg Act do apply.

      And, if you actually look at the first of the grey areas on the flowchart, late service of a gas safety cert (if one is required) is quite possibly no good. If one wasn’t provided at the start of the tenancy, it may mean no s.21 ever. If one was provided at the start, but then the subsequent ones were late (not within 12 months and 28 days), that can be remedied by providing one late. If the landlord of a post 1 Oct 2015 tenancy didn’t provide the gas safety cert at the start, the pragmatic advice is ‘you may be completely stuffed on serving a s.21, but you can take a chance that a judge might decide differently, except in London, at least for now’

    • And the ‘legal types’ as you put it, are the ones trying to figure out what the pragmatic advice is. ‘You can do X, but there is a chance it will go wrong’.

  4. Thanks so much for this, Giles. However I don’t seem to be able to access page 2 and the comment re Caridon v Shooltz cuts off mid sentence. Have you any suggestions about how I might view the whole document?

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