Further to our guidance on the new provisions that came into force in October 2015 regarding Section 21 notices there has been a further update...
Accelerated Possession Procedure
For many years the accelerated possession procedure has been a preferred method used by landlords to recover possession of properties let on Assured Shorthold Tenancies (“ASTs”).
The Deregulation Act 2015
The Deregulation Act 2015 (the Act) and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (as amended) (The AST Notices Regulations) made significant changes to Section 21 of the Housing Act 1988, introducing Sections 21A and 21B, effectively providing additional requirements that must be met before a valid Section 21 Notice may be served. Our briefing note detailing these changes can be found here.
The changes currently only apply to ASTs that were granted on or after 1 October 2015 (Section 41 of the Act). As from 1 October 2018, however, many of the changes introduced by the Act will apply to all ASTs no matter when or how they commenced.
How does this affect Landlords?
There are a number of points of which a Landlord intending to serve a Section 21 Notice should be aware:
1. Use it or Lose it
Proceedings for possession on the basis of a Section 21 Notice cannot be commenced more than six months after the Section 21 Notice is served. It is not yet clear whether this will apply to notices served before 1 October 2018 to expire after 1 October 2018 but it would be safest to assume that it does.
2. Prescribed Form 6A
All Section 21 Notices served after 1 October 2018 must be in the prescribed form, Form 6A (available here).
3. Prescribed Requirements
The Act prevents a valid Section 21 Notice being served by a landlord who has failed to comply with any prescribed requirements relating to the condition of a dwelling house or its common parts, the energy performance at a dwelling house or the health & safety of its occupants. The prescribed requirements include the service of a Gas Safety Certificate and an Energy Performance Certificate (EPC).
There is some confusion over the applicability of the prescribed requirements to ASTs that commenced prior to 1 October 2015. Section 38 of the Act provides that a Landlord must comply with any prescribed requirements. The requirements are prescribed by the AST Notices Regulations. The AST Notices Regulations, however, only apply to ASTs granted on or after 1 October 2015 (Regulation 1(3)). When serving a Section 21 Notice in respect of an AST that commenced prior to 1 October 2015, therefore, while a Landlord must comply with any prescribed requirements, there are in fact no prescribed requirements with which to comply.
It is likely that this issue will be resolved in the future. In the meantime, if you have not already done so, we advise you serve copies of the EPC and Gas Safety Certificate as soon as possible.
The requirement to provide a copy of the ‘How to rent: the checklist for renting in England’ booklet should not apply to ASTs that commenced prior to 1 October 2015. Section 41 of the Act specifically excludes Section 39 of the Act when applying the provisions at Sections 33-38 and 40 of the Act to ASTs that commenced prior to 1 October 2015. In addition, please note that the requirement to serve the booklet does not in any event apply to Registered Providers of Social Housing.
4. Retaliatory Eviction
The rules preventing a valid Section 21 Notice being served where the Local Authority has served an Improvement Notice or where there is an outstanding relevant disrepair complaint will apply to all Section 21 Notices served after 1 October 2018, for further details see our earlier briefing note.
5. Repayment of rent where the tenancy ends before the end of a period
The tenant’s statutory entitlement to repayment of rent will apply to Section 21 Notices from 1 October 2018. The tenant will be entitled to be repaid the pro-rata rent from the landlord where as a result of a Section 21 notice the tenancy is brought to an end before the end of a period of the tenancy; the tenant has paid rent in advance for that period and the tenant was not in occupation for one or more whole days of that period.
To see the government advice on Section 21 notices please follow the link below: