All change! Section 21 Notices shaken up
Landlords of the average residential property are fully aware of the ability to recover possession under Section 21 of the Housing Act 1988 by serving 2 months' written notice. Some have been caught out by the Tenancy Deposit Rules which invalidate any Section 21 Notice which is served whilst the deposit is not protected or in some cases whilst the regulated information has not be given to the tenant about where the deposit is held. Nevertheless the Section 21 Notice is probably one of the most powerful aspects of the assured shorthold regime giving landlords a considerable amount of flexibility and a fall back option in case of requiring possession.
The Section 21 procedure is about to receive probably the biggest shakeup in its history and that shakeup is largely in favour of the tenant.
In respect of new tenancies, beginning from the 1st October 2015, the Deregulation Act 2015 and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 stipulate that the landlord cannot serve a Section 21 Notice unless it has complied with its obligations to provide an Energy Performance Certificate, a copy of a Gas Safety Certificate and a Department for Communities and Local Government Booklet entitled 'How to Rent - the Checklist for Renting in England'. Furthermore, a landlord cannot serve a Section 21 Notice during the first 4 months of the Assured Shorthold Tenancy. So the practice of serving a Section 21 Notice at the very beginning of a tenancy to expire in 6 months' time when the fixed term ends will have to cease.
There is now a new prescribed form for the Section 21 Notice entitled 'Form 6A' to be used on all ASTs created on or after 1st October 2015.
As before, the Form 6A Section 21 Notice cannot be served validly unless the landlord has properly protected the tenants' deposit. It also can be declared ineffective by the Local Authority if a landlord is restricted from serving a Section 21 Notice under the so called Retaliatory Eviction Provisions. These apply if a tenant has made a written complaint to its landlord regarding the condition of the premises or common parts before the notice is given and the landlord has not responded or given an inadequate response. This will empower tenants of substandard accommodation who may be scared to complain about issues with the property for the fear of facing a Section 21 Notice repossession.
These provisions do not apply where the tenant is in breach of its duty to use the premises in a tenant like manner, the premises are genuinely on the market for sale or where the landlord is a private registered provider of social housing.
These requirements will also not apply to Fixed Term Assured Shorthold Tenancies granted before the 1st October or to periodic tenancies which started out as a Fixed Term Assured Shorthold Tenancy before 1st October 2015.
From 1st October 2018 the rules will apply across the board to any Assured Shorthold Tenancy.
The booklet 'How to Rent' can be obtained at the link below:
It is curious that the Deregulation Act effectively increases the regulation and complexity of S21 notices, but that is politics for you!
For help in serving the correct form of notice in the correct manner, and ensuring that landlords comply with all of the technical requirements, contact one of our disputes specialists at your local Wards Solicitors office.