Service of notices under section 21 Housing Act 1988 – changes to the law

Published: 21/09/2015

Background

Residential landlords (and their managing agents) will shortly be grappling with a variety of changes to the requirements for both the granting and management of residential tenancies let on assured shorthold tenancies (ASTs). As well as new requirements relating to smoke detectors and carbon monoxide alarms (still not actually in force but intended to take effect on 1 October 2015) there will be new rules regarding landlords’ ability to remove tenants following complaints about the state of repair of the premises (known as retaliatory evictions). However, this article deals with yet another change taking effect on that date, dealing with service of notices under Section 21 of the Housing Act 1988. This section relates to so-called ‘no fault’ evictions, typically where a lease has come to an end with the tenant continuing in occupation and the landlord wants to re-take possession of the premises. Provided the landlord serves the correct statutory notice (at least two months in advance) then if the tenant fails to give back the property the landlord can seek an accelerated possession order from the court. The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (the Regulations) make a number of important changes for leases granted in England which will materially affect landlords’ ability to give those Section 21 notices.

The Regulations

With effect from 1 October 2015 -

  • For all ASTs created after 1 October 2015, a new prescribed form Section 21 Notice must be used. (This prescribed form is contained in the Schedule of the Regulations.) 

  • For all ASTs where the landlord uses the new prescribed form (confusingly the prescribed form says it may be used for any tenancy even though it is only mandatory for those granted after 1 October 2015), a Section 21 notice cannot be given unless the landlord has already given their tenant:

    - an energy performance certificate

    - an up to date gas safety certificate

    - the booklet entitled How to rent: the checklist for renting in England (a document available from the Department of Communities and Local Government and it can be served by hard copy or email.) This does not mean that the landlord must keep providing a copy of the booklet each time it is updated, but an up-to-date one must be provided each time a new tenancy commences. 
The reasons behind the above changes / implications

For the new prescribed Section 21 notices, the Government says its’ intention is to simplify the notice procedure for landlords and so avoid invalid notices, which the Governments says has led to increased legal costs for landlords and delays in obtaining possession. For all the other changes, the Governments says its’ intention is to encourage landlords to comply with their existing obligations to tenants, particularly as regards energy performance and gas safety. The implication of the changes is clear: a breach of the Regulations will render any Section 21 notice invalid and will require a landlord to comply with the Regulations before a fresh Section 21 notice can be served.

In one sense a well-organised landlord, or managing agent, shouldn’t have any practical difficulties in complying with the new requirements. After all, there are existing regulations governing the provision of the first two items to tenants in any event, and the third is freely available on the internet (although that does assume you have an internet connection and the means of providing it to the tenant). On the other hand, by creating additional pre-conditions to the service of a valid and effective notice, responsibility for proving that this has been done has shifted. Many managing agents are already advising landlords that they should ensure that the tenant signs a receipt to confirm that they have received the prescribed information at the time of the letting. But this will only get them so far; the requirement to provide a gas safety certificate (itself governed by yet another set of regulations) is an annual requirement which will generally fall on the anniversary of the last certificate, not the date of the letting agreement. It is possible that tenants will refuse or delay access to the property in order to frustrate a landlord’s ability to comply with the requirements and therefore forestall a Section 21 notice being served. And that surely cannot have been the intention of Regulations designed to prevent ‘rogue’ landlords acting unlawfully, can it? Given the Government’s anti-costs increases stance this looks like it may well have the opposite effect. Unfortunately the Regulations provide that the Secretary of State’s obligation to review the success of this new regime does not apply for another five years…

The content of this article is for general information only. To discuss the implications of this legislation further please contact Ian Rattenbury or a member of Birketts’ property dispute team. Law covered as at September 2015.

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