Coming Up To Speed – AST Changes from 1st October 2018

In March 2015 the rather misleadingly-titled Deregulation Act 2015 was enacted. It contained a surprising amount of regulation. As is normal with this sort of thing the sections of the Act came into force on various different dates, and provided for things to be covered by regulations, so there was no need to cover all of this at the time.

The portion that I’m interested in here, ss33-41, generally came into force on 1st October 2015 and I covered it at the time here. In order to allow landlords (and tenants) a chance to get themselves organised the provisions only took effect for ASTs which commenced on or after 1st October 2015 – specifically:

41  Application of sections 33 to 40

(1)Subject to subsections (2) and (3), a provision of sections 33 to 40 applies only to an assured shorthold tenancy of a dwelling-house in England granted on or after the day on which the provision comes into force.

(2)Subject to subsection (3), a provision of sections 33 to 40 does not apply to an assured shorthold tenancy that came into being under section 5(2) of the Housing Act 1988 after the commencement of that provision and on the coming to an end of an assured shorthold tenancy that was granted before the commencement of that provision.

(3)At the end of the period of three years beginning with the coming into force of a provision of sections 33 to 38 or section 40, that provision also applies to any assured shorthold tenancy of a dwelling-house in England—

(a)which is in existence at that time, and

(b)to which that provision does not otherwise apply by virtue of subsection (1) or (2).

So the Act applies to all ASTs from 1st October 2018 – next week, as I write this. However, it isn’t as dramatic as it looks.

You may remember that the Act covered a number of requirements:

  1. service of EPCs
  2. service of gas safety certificates
  3. service of the booklet “How to rent: the checklist for renting in England”
  4. a prescribed form of s21 notice
  5. no service of s21 notices in first 4 months of tenancy
  6. s21 notices to be valid for 6 months only
  7. an end to retalitory evictions

These all now apply for all ASTs. However,  as the requirement for Nos 1 & 2 was to serve the “prescribed” information, and as the regulations in question exclude all tenancies starting before 1st October 2015, there is, at present, no prescribed information to serve for such tenancies. It may be that something appears in the next week or so, but if not it would clearly be prudent for a landlord to provide the information and any updating gas certificates, but they do not actually have to.

The other headings have now become the new “normal”. The How to Rent booklet merely needs to be served before the s21 notice. The prescribed form is now used invariably anyway, the 4 months will necessarily have expired some 2.5 years ago, and few landlords now delay issuing proceedings once a notice has been served.

That leaves the prohibition on retalitory evictions. This seems to have been something of a damp squib, as far as I can see. They require an improvement notice to be served by the local authority. LAs are very strapped for cash and the tenancy protection officers that used to deal with this sort of thing have almost entirely disappeared, being replaced with multi-tasking staff who rarely have time to deal with anything short of an emergency. And of course the worst landlords just make the tenants an offer that they can’t refuse. It’s all very patchy at best.

Please note that the exclusion includes all ASTS whose fixed term starts before 1.10.15 AND the periodic tenancies which arise when they expire.

I don’t know how many tenancies are affected by this change. Tenants in ASTs tend to move on and change – which is one of the complaints about the system, and the spur for the current discussions on making the minimum length of the tenancies to be 3 years – but there will be a significant number unprotected by the EPC and gas certificate protection afforded to the rest.

The government might take the opportunity, when issuing the missing regulation, of sorting out the potential major problem of whether a landlord can serve a gas certificate and an EPC late, or whether they have just lost the right to use s21 for the duration of that letting – see my piece here for more details.

More information on the Nearly Legal website, as ever.

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All Change – s8 Notices, Superstrike and more

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.