Updated Section 21 Notices – Key Changes introduced by the Deregulation Act 2015

September 2015 –  Since our recent briefing on the changes to Section 21 Notices, the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015 (which are now in force) have been made to address the obvious problems we previously referred you to regarding the prescribed form of the Section 21 Notice.

Below is our updated briefing on the changes which include the amendments that have now been made to the prescribed form of the Section 21 notice.  Please beware some e-flashes you may have seen, which suggest that you should start using the new section 21 form for all cases after 1st October 2015, read our updated briefing to see the potential problems this may cause.

If you have any queries about the new provisions or would like a copy of the amended new prescribed form, please give our Social Housing team a call on 01753 876800 or email us on caroline.cowley@owenwhite.com.

As of 1st October 2015, new provisions will come into force in respect of Section 21 notices.

The provisions of the Deregulation Act 2015 (the “Act”) and The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015 (SI 2015/1725) (“Regulations”) effectively introduced new requirements for serving a valid Section 21 notice.

The new provisions will apply to all new ASTs starting on or after 1st October 2015. However, as of 1st October 2018 the provisions will apply to all ASTs in existence at that time.

The New Requirements:

1. Compliance with prescribed legal requirements

A Section 21 notice may not be given if the landlord is in breach of any legislation which relates to any of the following:

  • The condition of dwelling houses or their common parts
  • The health and safety of occupiers of dwelling-houses
  • The energy performance of dwelling-houses.

For example, a Section 21 notice cannot be served if there is no EPC or Landlord gas safety certificate in place for the property. Any non-compliance with this requirement will render the section 21 notice ineffective.

Practically, we advise you to attach additional copies of the EPC and Gas Safety Certificates to the Section 21 notice in order to avoid any dispute on this point.

 2. Requirement of the landlord to provide prescribed information

Landlord will be required to provide tenants with a copy of the Department for Communities and Local Government’s booklet entitled “How to rent: the checklist for renting in England” which can be found at the following web address: https://www.gov.uk/government/publications/how-to-rent at the start of each AST.

As above, we also advise that you attach a copy of the Government booklet to the Section 21 notice which confirms that it was provided to the tenant at the start of the tenancy in order to avoid any dispute on this point.

Please note that this requirement does not apply to Registered Providers of Social Housing or where a landlord has already provided the tenant with an up-to-date version of the booklet under an earlier tenancy

3. Prescribed form of Section 21 notices

As mentioned above, the new provisions and regulations only apply to ASTs that are granted on or after 1 October 2015 until 2018 when they will apply to all ASTs in existence at that time. You should use the new prescribed form in relation to all new ASTs granted after 1st October 2015.

You do not however need to use it if the ‘new’ tenancy is simply a statutory periodic tenancy that arises following the expiry of a fixed term AST granted prior to 1st October 2015.

The prescribed form has now been amended to make it clear that you can continue to use the old section 21 notices for all ASTs granted before 1st October 2015, although it still states that that new Section 21 notice can be used for all ASTs. However, we suggest that you continue to use the old Section 21 notices to avoid any defective notice arguments. For example, if you use the new form for an pre October 2015 AST that has always been periodic (like many ‘Starter/Probationary’ ASTs), you will be forced to include an expiry date which may not be correct and thus making it invalid. The current section 21 notices that you should be using for periodic ASTs do not include an actual expiry date but use a ‘saving clause’.

4. Notice Periods under Section 21(4)

For all new ASTs (including periodic) granted after 1st October 2015, you will no longer have to worry about the notice having to expire ‘on the last day of a period of the tenancy’ which has caused lots of confusion and invalidated numerous section 21 notices. This requirement will be removed in relation to all new ASTs granted after 1st October 2015.

The new provisions require you to still give 2 months’ notice before you can seek possession. If you have periodic ASTs that do not run week to week or month to month (eg rent is payable every 6 months) then you will have to give longer notice.

Please also be aware of the requirement referred to in note 1 on the amended prescribed form of the Section 21 notice in relation to allowing sufficient time for service of the notice. We advise all landlords to ensure that they always check the terms of the tenancy agreement and ensure that the correct period for service is given.

 5. Time limits

For all new ASTs granted after 1st October 2015, a Section 21 notice must not be served on a tenant within 4 months of the commencement of the tenancy. For replacement tenancies (a new tenancy with the same parties and the same property) a Section 21 notice cannot be served within 4 months of when the original tenancy began.

Once a Section 21 notice has been given under a fixed term AST or a periodic AST (that runs from week to week or month to month) possession proceedings must be started within 6 months of the date the notice was given (Section 36 Deregulation Act 2015).

Section 3 of the new prescribed form of the Section 21 notice has now been amended to rectify the obvious error which we pointed out in our previous briefing. The amended version states that a notice is valid for 6 months from the date of issue unless you have a periodic tenancy under which more than two months’ notice is required (for example, if the rent is paid quarterly, at least three months’ notice is required or if it is a periodic tenancy which is half yearly or annual, you must give at least six months’ notice (which is the maximum)) in which case the notice is valid for four months only from the date specified in section 2 of the prescribed form of the Section 21 notice.    

6. Preventing retaliatory evictions

A landlord will not be permitted to serve their tenant with a Section 21 notice within 6 months of the service or suspension of a relevant improvement notice which has been issued to the landlord by the Local Authority.

Nor will a landlord be able to serve a Section 21 notice on a tenant that has made a complaint to the landlord regarding the condition of the property and the landlord has (a) failed to provide a response to the complaint within 14 days of receipt; (b) served a Section 21 notice in reply or; (c) failed to provide an adequate response. If the response is inadequate the tenant can complain to the Local Authority who must then carry out an inspection of the property. If the Local Authority serves an improvement notice or carries out emergency remedial action in response to the tenant’s complaint any Section 21 notices already served on the tenant will be deemed ineffective, any proceedings struck out by the Court and a further Section 21 notice cannot be issued by the landlord for 6 months.

You will no doubt have read in the press about the new provisions regarding retaliatory notices but please be aware that this will not apply if the landlord is a private registered provider of social housing. Nor will it apply if the relevant notice is served by the Local Authority due to the tenant’s breach of tenancy, if the property is on the market for sale, the property is subject to a mortgage granted before the beginning of the tenancy.

7. Repayment of rent where the tenancy ends before the end of a period

A tenant will have a statutory entitlement to repayment of the pro-rota 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.

If you have any further queries, please do not hesitate to contact our Social Housing Team on 01753 876800 or caroline.cowley@owenwhite.com.