Coventry View

A litigation lawyer's perspective

All Change – s8 Notices, Superstrike and more

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As I’ve mentioned before, the bane of writing these pieces is that no sooner have you written about something than they go and change it so you have to update things. I’ve been a bit slow off the mark this time, so all the spadework has been done by others, and all I hope to do is to point to their pristine furrows, and invite you to admire. In practice it may be a bit more complicated – it always is.

s8 Notices

These are the notices that you have to serve if you are a landlord to an Assured or Assured Shorthold Tenancy and want to bring it to an end prematurely, usually because the rent isn’t being paid, or the tenants are being antisocial, but there are lots of other possible reasons – grounds 1-17 + 7A, 14A and 14ZA of the Act* set them out.

Strictly speaking the notice is Form 3 under the Housing Act 1988* section 8 as amended by section 151 of the Housing Act 1996 and section 97 of the Anti-Social Behaviour, Crime and Policing Act 2014 but I’ll continue to use s8 Notice in the interests of saving my fingers.

The important thing is that the form of notice is prescribed, and the form of the notice has been (slightly) amended from 6.4.15, in this case by the Assured Tenancies and Agricultural Occupiers (Forms) (England) Regulations 2015 No 620 (different forms apply in Wales, it appears). So if you don’t use the right one the notice is ineffective and you’ll probably have to start the court proceedings all over again. You will certainly be returning to go without the court fee if you are using the most popular ground – Ground 8 (2 months’ arrears of rent) – because the court isn’t allowed to dispense with service of the notice in that case (see s8(5) HA 88).

There are also changes to some lesser-known forms such as a s13 form that allows a landlord to increase the rent.

So make sure that you use the right up-to-date form, or if you are a tenant or advising one, that the landlord has got it right.

There is more information on Tessa Shepperson’s useful blog and the forms themselves are in the Stat Ins and elsewhere. Do be careful – the last time that I looked several sites, including the government site still had the old invalid ones. The new forms have a note about ground 7A after section 5.

s21 Notices

These haven’t been changed. But do remember that you rarely need to use the s21(4) notice for periodical tenancies any more – the s21(1) fixed term notice is valid for all tenancies provided that they started off as a fixed term tenancy, as they nearly always do. This is all courtesy of Spencer v Taylor – more on this here.

Superstrike and AST Deposits

Deposits taken by landlords and their agents in relation to Assured Shorthold Tenencies have to be protected in one of the deposit protection schemes. However, what happens when the initial 6/12 month term expires and the tenancy goes over to being periodic? Surely you don’t need to protect it/serve all the notices all over again! Oh yes you do – courtesy of the CA in Superstrike v Rodrigues. This decision in 2013 made logical sense but no sense in the real world and we have been waiting for ages for it to be overturned by legislation.

Well, the time has come at last, and a clause or two have been slipped into the Deregulation Act 2015 to put us back to basically where we thought we were beforehand. Hence:

  •  s215A For deposits received before 6th April 2007 (when the original legislation had come into effect) provided the deposits are protected and the appropriate notices served by 23rd June 2015, or before any possession proceedings are started, they are deemed to have been properly protected.
  • s215B For deposits received on or after 6th April 2007 provided the deposit has been protected and the appropriate notices served for the fixed term, they don’t need to be repeated for any periodic tenancy that replaces it. It doesn’t matter if it is a statutory or contractual tenancy, but the landlord and tenant must be the same,  and the premises must be substantially the same, and the tenancy must come into being on the coming to an end of he original tenancy. And the section is treated as having had effect since 6th April 2007.

There are transitional provisions for claims by tenants for penalties under s214 or landlords for possession under s21. Basically, if the claims have been settled or finally determined (ie time for appealing expired) they are final, but if not the court will apply the new law from 26th March 2015, and the landlord will probably win. However, he won’t be allowed to recover any costs from the tenant it he has to rely on these provisions.

And finally, some bad drafting about notices giving agents’ details has been tidied up, so that agents can give their details or the landlords details if they wish. And the same transitional provisions apply for claims that have arisen because of this.

This is only a brief summary. For the exact wording go to ss30-32 Deregulation Act 2015 and for a more detailed explanation go to Tessa Shepperson’s blog where she breaks things up into digestible chunks.

This ought to sort things out, but it’s a complicated area and I have a feeling there may be some more problems in store. There is no excuse, however, for any landlords who haven’t protected and notified deposits taken before 6th March 2007: get things organised by 23rd June 2015 or have the sky fall on you!

More to come

I will leave the even more complicated bits in the Deregulation Act restricting retalitory evictions and changing the rules on s21 notices until another time. They only apply to fixed term ASTs that were granted on or after 1st October 2015, or periodic ASTs that immediately followed on from such tenancies. Until, that is 1st October 2018, when they will apply to all ASTs, whenever granted. So I’ve a little time to spare.

 

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  1. […] usually at short notice, and with little publicity. The powers that be did so in April 2015 (see my piece) and are now doing so again, with effect from 6th April […]


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