Section 21 Notices – The New Procedure
On 1 October 2015 a number of significant changes were introduced to the procedure for obtaining possession under section 21 of the Housing Act 1998 in respect of residential property let on an assured shorthold tenancy (“AST”).
The changes apply to all ASTs granted in England on or after 1 October 2015. They do not apply to ASTs in Wales.
• Housing Act 1998 (“HA”)
• Deregulation Act 2015 (“DA”)
• The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 – SI 2015/1646 (“Regulations”)
• The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015 – SI 2015/1725 (“Amendment Regulations”)
The principal changes are:
• A new prescribed (mandatory) form of section 21 notice (S21(8) HA, introduced by S37 DA, prescribed notice contained in Amendment Regulations.
• A restriction on serving a S21 notice within the first 4 months of the tenancy (S21(4B) HA, introduced by S36 DA).
• For statutory periodic tenancies, the removal of the requirement for the date specified in the notice to be the last day of a period of the tenancy. It will now normally just be 2 months’ notice, unless the periodic term or rental period is longer (S21(4ZA) HA, introduced by S35 DA).
• Introduction of a 6-month expiry date from the date of the notice (or, where the notice had to give more than 2 months’ notice, expiry date of 4 months from the date specified in the notice) within which time proceedings must be commenced, otherwise a fresh notice will need to be served (S21(4D) and (4E), introduced by S36 DA).
• Restriction on serving a notice until landlord has provided tenant with an energy performance certificate and gas certificate (S21A HA, introduced by S38 DA, para 2 Regulations)
• Restriction on serving a notice until landlord has provided tenant with prescribed information about rights and responsibilities of tenants and landlords (S21B HA, introduced by S39 DA, para 3 Regulations )
• Prevention of “retaliatory eviction”. Landlord may not serve a S21 Notice where the tenant has made a written complaint regarding the condition of the property and the landlord has failed to respond or has responded inadequately (S33 DA)
• Tenant has the right to an apportionment of rent paid in advance in respect of a period falling after a S21 notice has brought a tenancy to an end.
• The changes only relate to ASTs granted on or before 1 October 2015. Given the minimum 4-month period, the earliest date on which the new prescribed notice can be used is 1 February 2016.
• The changes will not apply to a fixed term AST granted before 1 October 2015 even if after that date the AST becomes a statutory periodic tenancy
• From 1 October 2018, the changes will apply to all existing ASTs regardless of when they were granted and whether or not they have become statutory periodic tenancies
• Be aware that there is an earlier version of the prescribed notice in the Regulations (SI 2015/1646) which was replaced by the Amendment Regulations (SI 2015/1725). You must use the later version contained in the Amendment Regulations.
• The prescribed information under s21B HA is a booklet produced by the Government entitled “How to Rent” and can be obtained here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/484335/How_to_Rent_October_2015_FINAL.pdf
• The landlord still needs to comply with the rules on deposits in addition to these new requirements.
• The landlord will need to provide documentary proof of compliance with the various requirements when issuing the possession claim.