To help keep landlords up to date Leonard Scudder in our Dispute Resolution Department has put together this guide to provide answers to the most frequently asked questions around serving notice.
The provisions of the Deregulation Act 2015 and The Assured Shorthold Tenancy Notices and Prescribed Requirements Regulations 2015 introduced new requirements for serving a valid Section 21 notice. However, due to the time taken to implement these changes in practice independent landlords and agencies are sometimes still struggling to achieve compliance.
The new provisions apply to all new Assured Shorthold Tenancies starting on or after 1st October 2015. As of 1st October 2018, the provisions will apply to all ASTs in existence at that time.
Compliance with prescribed legal requirements
A Section 21 notice may not be given if the landlord is in breach of any legislation which relates to any of the following:
• The condition of dwelling houses or their common parts
• The health and safety of occupiers of dwelling-houses
• The energy performance of dwelling-houses.
For example, a Section 21 notice cannot be served if there is no EPC or gas safety certificate in place for the property. Any non-compliance will render the section 21 notice ineffective. This is why it is important to ensure you always retain copies of covering letters which you send to your tenants and where possible deliver personally by hand or keep proof of postage. Practically, it’s advised copies of the EPC and Gas Safety Certificates are appended to the Section 21 notice in order to avoid any dispute as to them having been served.
Requirement of the landlord to provide prescribed information
Landlords are required to provide tenants with a copy of the Department for Communities and Local Government’s booklet entitled “How to rent: the checklist for renting in England”
The Form of Section 21 notices
– The old prescribed form has now been amended to make it clear that you can continue to use the old section 21 notices for all ASTs before 1st October 2015,
– The new Section 21 notice can be used for all ASTs.
It’s suggested that you use the old s21’s for the old ASTs and the new one for the new ASTs to avoid ‘defect notice’ arguments. If you serve a “new” s21 notice it assumes you have complied with the new post Oct 2015 requirements (which may not be the case).
Notice Periods under Section 21(4)
For all new ASTs (including periodic ones) granted after 1st October 2015, the notice no longer has to expire ‘on the last day of a period of the tenancy’, however the new provisions require you to give 2 months’ notice before you can seek possession and all new Section 21s served after October 2015 must not be served on a tenant within 4 months of the commencement of the tenancy. This means that, as a Landlord, you are tied in to a tenancy for no less than 6 months, which could be a problem with a troublesome tenant, and so you should ensure that proper referencing has taken place, or at least a sizeable deposit.
Once a Section 21 notice has been given proceedings must be started within 6 months of the date the notice was given or else the notice will expire.
A landlord will not be permitted to serve a Section 21 notice on a tenant that has made a complaint to the landlord regarding the condition of the property and the landlord has:
(a) failed to provide a response to the complaint within 14 days of receipt;
(b) served a Section 21 notice in reply or;
(c) failed to provide an adequate response.
If the response is inadequate the tenant can complain to the Local Authority who must then carry out an inspection of the property. If the Local Authority serves an improvement notice or carries out emergency remedial action in response to the tenant’s complaint any Section 21 notices already served on the tenant will be deemed ineffective, any proceedings struck out by the Court and a further Section 21 notice cannot be issued by the landlord for 6 months. To remedy this landlord’s must ensure they provide a reasonable response to requests for repairs within a reasonable time.
Repayment of rent
A tenant will have a statutory entitlement to repayment of the pro-rota rent from the landlord where as a result of a Section 21 notice the tenancy is brought to an end before the end of a period of the tenancy; the tenant has paid rent in advance for that period and the tenant was not in occupation for one or more whole days of that period.
Separately; there are The Smoke and Carbon Monoxide Alarm (England) Regulations 2015, which the landlord also has to comply with for a s21 to be validly served.
The duties under the regulations apply to almost all tenancies or licenses in England (new and existing) from 1 October 2015. One exemption is lodgers and HMOs (which, under the housing Act, already have their own suitable fire safety requirements).
Regulation 4 contains that a landlord must ensure that after 1 October 2015 “a smoke alarm is equipped on each storey of the premises on which there is a room used wholly or partly as living accommodation”.
The issue here is making it work in practice. The alarms have to be shown to have been working on the first day of the tenancy and so it is advised that Landlords have the tenant to sign the inventory to record that the required alarms have been tested by the landlord and the tenant is satisfied they are in working order. Without this, it is very hard to prove that the testing was done and that the tenant was notified of it.
Should the argument of the Smoke Reg’s be made it may be prudent to go in to the property and have them checked anyway as if it can be shown that they are working now at least there is some element of proof of compliance – no matter how retrospective.
As more and more disputes arise in tenancies, new ways of defending possession proceedings are created and the simplest way to avoid excessive costs is by ensuring that you or your agent are taking the above precautions and not only requesting signature evidence but ensuring receipt of it.