One of the problems with the law, and especially with housing law, is that as soon as you have worked out what the law is in one particular corner, and how you have to act in order to comply with it, and have drafted the forms and prepared the advice, somebody comes along and changes it, and you have to start again, or at least revise things.
Well, this has happened with notices under s21 Housing Act 1988 following the coming into force of further parts of the Deregulation Act 2015 and some new regulations.
Things as they were
As you probably know, s21 HA provides a way of a landlord of an Assured Shorthold Tenancy – the most common kind of tenancy in the private rental market – to bring the tenancy to an end, basically by giving 2 months’ written notice. Provided this expired after the end of any fixed term (and originally at the end of any periodic tenancy period) then the landlord could bring possession proceedings and the Court had to make a possession order. There was no form of notice, and the procedure could go through the accelerated process, which meant that if you had got the paperwork right there wasn’t even a hearing, as the order was made on a paper application. This made it the most common way of ending a tenancy, as there was no argument about reasons or anything like that, and many thought that this guaranteed ability of landlords to bring tenancies to an end when they wanted was the one of the key things that set off the increase in private lettings.
When tenants’ deposits had to be protected in 2007 the landlord had to enter the deposits into one of the approved schemes and give the tenants notice within a prescribed period (originally 14 days, but later changed to 30 days) and if they hadn’t done so (or couldn’t prove that they had done so) any s21 Notice was invalid. This encouraged landlords to comply, and after some considerable hiccups with the legislation (see here and here) this system now seems to be working satisfactorily.
This was encouraging – a self-enforcing piece of legislation – so the government has now imposed a number of additional requirements. For tenancies starting after 30th September 2015 a landlord also has to serve the tenants with:
• An energy performance certificate
• A gas safety certificate
• A copy of the current booklet “How to rent: the checklist for renting in England”
And if they don’t they can’t serve a s21 notice until they do. This only applies to new tenancies – not periodic tenancies that come into force after that time on the expiry of a fixed term. Note however that it does apply to a contractual periodic tenancy, or a replacement tenancy which merely replaces a former tenancy of substantially the same premises and is between the same parties.
Do note that landlords also have to fit smoke and carbon-monoxide alarms on all residential lettings (smoke alarms on every storey and CO alarms in rooms with a solid-fuel stove) from 1st October or they can be fined. This covers ASTs and all lettings for up to 7 years, apart from those shared with the landlord’s family and a few others. But it doesn’t affect the ability to serve a s21 Notice.
There is now a prescribed form of s21 Notice. Not very different to the one that was normally used before. But if you don’t use the new one for a letting starting after 30th September 2015 then it isn’t valid. And if you use the new form on an existing letting it is misleading, because the explanatory notes are incorrect, so it is best not to use it. Please note that the first version of the Regulations (which also cover the requirements on energy performance certificates etc) messed up the form of notice and it had to be corrected. This new version is the form to use.
s21 Notices banned in first four months
For ASTs starting after 30th September the s21 notice cannot be served in the first 4 months of the tenancy, or, if it follows on from an earier tenancy of the same property, within 4 months of the start of the earlier tenancy. Court proceedings must be started within 6 months of the notice (in most cases). So the old tactic of serving a notice with the tenancy is over.
And the end of retaliatory evictions
Well, that’s the intention. Landlords got into the habit of threatening to serve a s21 Notice on any tenants who looked as if they might be difficult, for example by complaining about defects in the property which the landlord ought to repair – say a leaky roof. This was clearly a bad thing, and unfair to tenants, and so s33 Deregulation Act says that s21 Notices can’t be served within 6 months:
• After an improvement notice, or an emergency remedial action notice, under the Housing Act 2004 has been served by the Local Authority; or
• After a tenant has written to complain about conditions, the landlord didn’t give a relevant response within 14 days and the tenant complained to the LA, and the LA served a notice.
There is argument in the legal press about whether the “relevant response”, which ought to be how the landlord proposes to address the problem, and a reasonable timescale for doing so, matters, or if a notice can be served anyway. The advice must be to respond, because it may persuade the LA that nothing further needs to be done.
Whether this will work very well in practice isn’t clear as most LA housing officers are very pressed and can barely keep up with their workload at present, but it is a start. We shall see.
This is a very simplified view of complicated law, which only applies to England, as Wales and Scotland have their own legislation. There is a lot more information on the Nearly Legal blog, and a whole series of very useful pieces on Tessa Shepperson’s Landlord Law blog. But at least you now know these changes have been made, and can go off and look things up. Job done.