Substantial changes were introduced by the Deregulation Act 2015 (“DA 2015”), restricting when a landlord can seek possession of residential property let on an assured shorthold tenancy (“AST”) granted on or after 01 October 2015 via Section 21 of the Housing Act 1988, and most of these changes will apply to ALL ASTs.

We have summarised the changes below of which some may be new to you and some are merely a reminder of the current rules.

New form of Section 21 notice (Form 6A) and new time limits

Historically, there has been no prescribed form or format for a section 21 notice, unlike with a notice served under section 8 of the Housing Act 1988 on fault based grounds. The notice merely had to be in writing. From 01 October 2018, however, all section 21 notices must be given in the prescribed form “Form 6A”, set out in The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the Regulations”).

In addition, the DA 2015 introduced new time limits on the serving of sections 21 notices and thereafter commencing possession proceedings. A landlord is prevented from serving a section 21 notice within the first 4 months of the AST. Furthermore, if proceedings for possession are not commenced within 6 months from the date the notice was served, the section 21 notice will expire and the landlord will have to serve a new notice if they intend to bring a claim for possession.

Compliance with prescribed requirements

The requirement to provide assured shorthold tenants with certain prescribed information before a landlord can serve a section 21 notice already applies to ASTs granted on or after 01 October 2015.

The information to be provided includes :-

1. The relevant Government ‘How to Rent’ Booklet that has effect for the time being (in this respect, see our Legal Updates from June 2018 and July 2018);

2. The Energy Performance Certificate for the property; and

3. The Gas Safety Certificate for the property, where applicable (or certain information where there is no relevant gas appliance in any room to be occupied by the tenant). Following the decision earlier this year in Caridon Properties Ltd v Monty Schooltz (2018) (see our Legal Update sent on 14 February 2018), the relevant gas safety certificate should be provided before the tenant takes up occupation of the property, as well as following the regular 12 month inspections.  In other words, if the certificate is not provided on or before the commencement of the AST, the landlord will not be able to serve a section 21 notice.

There appears to be an element of uncertainty as to whether these provisions will apply to pre 01 October 2015 ASTs come 01 October 2018, owing to discrepancies between the DA 2015 and the Regulations which set out exactly what the prescribed requirements actually are (as above).

Given this confusion, our advice is to ensure that the prescribed requirements are complied with for all ASTs from 01 October 2018 irrespective of when they were granted (the obligations relating to gas safety certificates apply under the Gas Safety Regulations 1998, in any event). This will save any complications later down the line when possession proceedings are commenced. This is especially so where the accelerated procedure is used.

Retaliatory Eviction

These restrictions were introduced to prevent tenants from feeling unable to complain about poor property conditions for fear of eviction.

The restrictions will apply to all ASTs from 01 October 2018 and :-

1. Restrict a landlord from serving a section 21 notice for 6 months after a Local Authority has served a ‘relevant notice’ upon the landlord. A ‘relevant notice’ includes an improvement notice or emergency remedial action notice under the Housing Act 2004, to deal with hazards at the property; and

2. Render a section 21 notice already served invalid if the Local Authority serves a relevant notice before a possession order is made.

These provisions apply where the tenant has made a written complaint to the landlord or its agent about the condition of the property, and the landlord either failed to respond to the complaint within 14 days, provided an inadequate response or served a section 21 notice in response. The tenant must then have complained to the Local Authority about the same, or substantially the same, matter complained of to the landlord and the Local Authority must have also served a relevant notice in response to the complaint. If the section 21 notice was not given before the tenant’s complaint, it must have been given before service of the relevant notice.

Again, there appears to be some uncertainty as to how these provisions will apply to pre 01 October 2015 ASTs during the transitional period immediately after 01 October 2018, depending on when a relevant notice is served and the specific facts of each case will need to be considered to determine whether the retaliatory eviction provisions apply or not.

Watch this space

Time will tell whether these issues will filter through to the Courts for further clarification. In the meantime, if you are in any doubt about whether any of the DA 2015 changes apply to your ASTs, do not hesitate to get in touch on 01435 897297 or at info@kdllaw.com .

Disclaimer

This legal update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole. 

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