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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More Problems for Landlords – Gas Safety

You may remember that from 1st October 2015 landlords of ASTs have had to give certain documents – Energy Performance certificates, Gas Safety certificates (if the premises have gas appliances) and the Government’s leaflet How to rent– to their new tenants and unless they do then they cannot serve a s21 Notice bringing the tenancy to an end.

The legislation is here – s21A Housing Act 1988, AST Notices etc regls 2015 (r2), AST Notices etc regls 2015 (r3), Energy Performance etc Regls 2012, and the Gas Safety etc regls 1998. 

The important part is in s21A Housing Act 1988:

(1)A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.

Now, as far as the How to rent leaflet is concerned, if the landlord omitted to hand it out when the tenant moved in, all they had to do to correct things was to serve it late, and then they could serve a s21 Notice without any problems. In fact, as the form of the leaflet changes from time to time it is probably as well to re-serve it before a s21 Notce in any event –  see my piece on it here.

Many people thought that the same rule applied to the enargy and gas certificates, although there were rumblings from some commentators that this might not be right, and it might be a once-and-for-all  requirement. The others however pointed out that this might mean that if a landlord was a day or two late in serving the certificates they would lose the right to serve a s21 notice for all time – and theoretically the tenant could stay put for ever, provided that they kept paying the rent and keeping the terms of the tenancy. Although this is the normal state of affairs for an Assured Tenancy it wasn’t for an Assured Shorthold Tenancy, and can’t be what the government intended.

Those taking the more relaxed view pointed out that the AST Notices etc Regls say in respect of the gas regulations that

(2) For the purposes of section 21A of the Act, the requirement prescribed by paragraph (1)(b) is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply.

So all will be well.

Not so, according at any rate to HHJ Jan Luba QC , sitting in the Central London County Court on 2nd February 2018 on a appeal from DJ Bloom in the case of Caridon Property v Mony Schooltz (unreported as yet).  He pointed out that the specific reference in the Gas regulations to 28 days is for checks carried out after the commencement of the tenancy:

(6) Notwithstanding paragraph (5) above, every landlord shall ensure that—

(a)a copy of the record made pursuant to the requirements of paragraph (3)(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and

(b)a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.

So every new tenant has to be given a copy of the latest certifcate before they move in.

A landlord who doesn’t do this is in breach of the requirement and will always be in breach of the requirement and so is for ever barred from serving a s21 notice in respect of that tenancy. HHJ Luba was a prominent housing QC before his appointment and his view is likely to be widely respected, although technically it isn’t binding on anybody outside the Central London County Court.

Now, it is clearly a good idea to keep tenants safe from faulty gas fittings, but this can’t be what the minister meant when he made the regulations in 2015. What is more, the same argument can be applied to the energy performance certificates, because the 2012 regulations say

(2) The relevant person shall make available free of charge a valid energy performance certificate to any prospective buyer or tenant—

(a)at the earliest opportunity; and

(b)in any event no later than whichever is the earlier of—

(i)in the case of a person who requests information about the building, the time at which the relevant person first makes available any information in writing about the building to the person; or

(ii)in the case of a person who makes a request to view the building, the time at which the person views the building.

(5) The relevant person must ensure that a valid energy performance certificate has been given free of charge to the person who ultimately becomes the buyer or tenant.

So if they don’t do this then the landlord is in breach of the 2015 regulations and no s21 notice for him. Note the deadline for the certificate – no later than the first viewing.

Matters may get worse, because the 2015 regulations only apply to tenancies that start on or after 1st October 2015 at present. They will apply to all ASTs from 1st October 2018, so tenancies going back to possibly 1998 may be covered.

It is Superstrike all over again – see my piece here for a reminder of that fiasco.

There are only two good points to cling on to

  • this only applies to ASTs in England, because the 2015 regulations don’t apply to Wales, and Scottish tenancy law is quite different;
  • after the Superstrike fiasco surely the Minister will make some corrective regulations without undue delay.

But who knows. At any rate it will make the housing lists in the busy County Courts even more fraught than usual. Keep your fingers crossed.

[That said, there is a quite respectable case for abolishing s21 notices entirely and requiring landlords to justify regaining possession to a judge or other tribunal. But if this is going to happen it ought to be brought in intentionally, and with warning and safeguards, not by accident like this.]

For more on this see the ever excellent Nearly Legal or Tessa Shepperson’s Landlord Law.