Now that the Coronavirus Act is in force (as of today 26 March 2020), the three month notice period applies to assure and assured shorthold tenancies (as well as secure, introductory, etc).
And there is:
i) a new Form 6A – the form for Section 21 notices. The form is here, stated to be for use from today, 26 March 2020 until 30 September 2020; and
ii) a new Form 3 – the form for Section 8 HA 1988 notices. The form is here, also for use from today, 26 March until 30 September 2020.
A couple of things to note, then some puzzlement.
The introduction to the form 6A initially stated that S.21 Housing Act 1988 was amended by section 3 Coronavirus Act 2020. That should be section 81. (Update – a few hours later, this has now been amended on the gov.uk site to read section 81).
The Coronavirus Act did not amend s.21(4D) Housing Act 1988, which provides that a s.21 notice has 6 months validity from date of service (the use it or lose it provision), save where a notice required more than two (now three) months notice because of the period of the tenancy for s.21(4) notices, when it is 4 months validity from expiry of notice.
What this means for a usual weekly or monthly tenancy, whether for the end of the fixed term or during a periodic stage, is that the period in which the landlord can rely on the s.21 notice to issue possession proceedings is now three months from the date the notice period expires, not the previous 4 months.
Where the tenancy is periodic and has a period that would require more that two (now three) months notice, then the s.21(4)(a) notice is valid for four months after expiry of the notice period. This is unchanged, save for the three months.
Now for the puzzlement – inevitably drafting related.
In order to be the prescribed form that must be used for assured shorthold tenancies to serve a section 21, the form 6A must be made so by regulations under s.37 Deregulation Act 2015/Housing Act 1988 s.21(8) – hence the statutory instruments we have had in the past, adding amended form 6A.
Now I don’t think one can quibble with form 6A being set by primary legislation rather than by regulation. But what the Coronavirus Act 2020 does, as Schedule 29 paragraph 12(2) is this:
(2) The Schedule to the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 (S.I. 2015/620) is to be read, in relation to notices given under section 21(1) or (4) of the Housing Act 1988 during the relevant period, as if in Form 6A (notice seeking possession of a property let on an assured shorthold tenancy)—
(a) in the section headed “What to do if this notice is served on you”, in the second paragraph—
(i) for “two months’” there were substituted “three months’”,
and
(ii) the words “if you pay rent quarterly, you must be given at least three months’ notice, or,” were omitted, and
(b) in paragraph 3, for “two months’” there were substituted “three months”.
So, the Act says the previous two month Form 6A is to be read as if it said three months. I’m not wholly sure that this actually amends form 6A, rather than stating how form 6A is to be read. Clearer words would have been ‘for the relevant period, in form 6A, “two months” is substituted by “three months” and so on.
Exactly the same concern applies with regard to Form 3.
And then, the introductory text to form 6A (and form 3) has also been amended to include reference to amendment by section 81 and Schedule 29 Coronavirus Act 2020. That change to the forms is definitely not in the Coronavirus Act. These are prescribed forms – they can’t be altered without statutory authorisation.
These may not be significant points, or then again they may turn out to be. But when dealing with forms that are prescribed by statute, statutory clarity is important. My sense is that a statutory instrument may be required to make these new forms 3 and 6A the prescribed forms. I gather I am not alone in this, as after drafting this post, I saw a chamber’s briefing to the same effect – The Coronavirus Act Schedule 29 does not ‘amend’ the various bits of housing legislation, but the changes are to be ‘read as’ amendments for the relevant period (to 30 September), and that a statutory instrument is required to change the forms.
Heaven knows we all understand the haste and serious pressures on those involved in putting this all together, (though our concerns about the adequacy of this part of the Coronavirus Act in its effects have been rehearsed here already), but drafting of amendments that aren’t amendments but are to be read as if they were amendments for forms that have now been replaced with forms that no longer have to be read as if they were amended (although they possibly weren’t, and may not be valid) is frankly confusing the hell out of me. And no doubt others.
Does this apply only to notices served on or after 26 March? Notices served prior still have 2 month period ?
Yes, as per our previous posts.
Mind you, all possession claims are suspended for at least 90 days from 27 March. New or existing claims.
Yes. But courts now suspending all possession claims for 90 days from 27 March.
How can I get previous version of Form 6A valid for notice served before 15 July 2020?
Nowhere official. But this was the wording for the post 26 March 2020 and pre 29 August 2020 Form 6A https://nearlylegal.co.uk/wp-content/uploads/2020/10/3monthsForm6A.pdf
Any idea which genius decided that one form would be in Word format, whilst the other would be a PDF?
First world problems I know, but consistency is important in my little corner of the universe.
So the situation is that any S8 or S21 notice issued by downloading the new forms has the potential to be ruled invalid 3 months down the line because it did not use the prescribed form?
Is it possible to issue both the old and new forms at the same time and rely on the “correct”one in proceedings, and if so, then from where can the old forms be obtained?
I suspect the answer is that there is a theoretical possibility. In practice, I would be very surprised if a judge didn’t accept that the new form was ‘substantially to the same effect’ in practice, even if they would entertain argument about its technical invalidity in the first place.
What’s the position for Notices for Proceedings for Demotion? It seems that the 3-month period doesn’t apply (the schedule seems to carve it out), but it’s not overly clear.
Schedule 29 section 9 provides:
Demoted tenancies
9 Section 143E of the Housing Act 1996 (notice of proceedings for possession of a dwelling-house let under a demoted tenancy) is to be read, in relation to notices served under that section during the relevant period, as if for subsection (3) there were substituted—
“(3) The date specified under subsection (2)(c)—
(a) must not be earlier than the end of the period of three months beginning with the date on which the notice of proceedings is served, and
(b) must not be earlier than the date on which the tenancy could (apart from this Chapter) be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings.”
Notice of Demotion doesn’t seem to be affected, but not in itself a notice seeking possession.
Hi, picking up on what RD said, we are wondering if there’s a mistake (to do with the fact it’s Word) on the new Section 8 form – at 3, in the space for the grounds you are relying on, appear the words ‘I must pay my rent…….’. This makes no sense at all in the context of what’s required in the paragraph.
I’d missed that! Yes, certainly a mistake.
Newsflash: I asked the NRLA about this ‘I must pay my rent…….’; they’ve raise the matter with the Ministry of Housing, Communities and Local Government (MHCLG), who confirmed that it was a drafting error, and have now replaced this with the correct version!
Same place (via https://www.gov.uk/guidance/assured-tenancy-forms#form-3), but without any admission/indication of error/change.
What happens with notices served prior to the pandemic? Will there be an extension (longer than the 6 months validity – the use it or lose rule) – as proceedings would have been suspended, I would have assumed that an extension for existing notices served would surely be “common sense”.
No extension. The notice could still be ‘used’ (as in possession proceedings issued). The stay simply meant the proceedings wouldn’t progress after issue.
I delivered by hand a S21 Notice on Sunday February 23rd dated 23rd Feb which I think means it was officially served on February 24th. I know that possession proceedings are suspended until August 23rd (a Sunday). Can I proceed on August 24th as that is the anniversary date of service of the S21? If so, should I deliver the papers to the court before then; would it help?
The stay does not affect the period within which a claim based upon a section 21 notice must be issued. The section 21 ceases to be usable 6 months from service.
It is possible to issue a possession claim during the stay. It just won’t proceed any further till the end of the stay.
I have recently noted that Schedule 29 of the Coronavirus Act 2020,section 12(2), refers to the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 and not the more up to date regulations the Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2019 with regard to Form 6A. Another example of poor drafting.
I think the 2020 Act is right on that point. The 2019 Amendment Regulations just amended the 2015 Regulations by inserting Form 6A into the Schedule to the 2015 Regulations (see reg.2, 2019 Regs). So amending the 2015 Regs is fine since the 2015 Regs now include the 2019 change.
If a form 6a has been used for serving a Section 21 notice in August, but the old form stating 2 months and not referencing the Coronavirus Act 2020 was used……does it make the notice invalid? Will it need a completely new notice with the correct information and 3 months’ notice?
My view is yes it is invalid, and yes it will need a new notice. Better be quick or it will be six months notice (coming soon).
what form is to be used after 20 September 2020 ?
There are new Forms 6A and 3.
How can I get previous version of Form 6A valid from 26 March 2020 upto 30 September
There was no such form.
The form 6A that was valid from 26 March to 28 August 2020 reads like this: https://nearlylegal.co.uk/wp-content/uploads/2020/10/3monthsForm6A.pdf
How can I get previous version of Form 3 valid for notice served before 27 August 2020?
No idea, I’m afraid. Someone might have one.