Legal Update: Changes to Section 21 Housing Act 1988 and a new prescribed form Section 21 Notice come into force on 1 October 2015
Sections 33 to 41 of the Deregulation Act 2015 (“DA 2015”) contain provisions which introduce further restrictions on a landlord’s right to serve and enforce “Section 21 Notices” to end assured shorthold tenancy agreements (“ASTs”) under section 21 of the Housing Act 1988 (“HA 1988”). The DA 2015 will insert new sections 21A, 21B and 21C into the HA 1988, which come into force on 1 October 2015.
The Changes
1) By s.21A HA 1988, a landlord will not be able to serve a Section 21 Notice unless it has complied with the following requirements:
i) The landlord must provide the tenant with an energy performance certificate free of charge; and
ii) The landlord must provide the tenant with a gas safety certificate. However the requirement is limited to providing a copy, and said copy does not have to be provided within 28 days as required by regulation 36 of the Gas Safety (Installation and Use) Regulations 1998.
2) By s.21B HA 1988, a landlord will be prevented from serving a Section 21 Notice where it has failed to provide the tenant with a copy of DCLG: How to rent: The checklist for renting in England, which sets out prescribed information about the respective rights and responsibilities of both the landlord and tenant under an AST.
Landlords are not required to serve a further copy of the booklet each time it is republished during the tenancy or where the landlord has already provided the tenant with the booklet under an earlier tenancy and that version is the latest version.
3) By s.21C HA 1988, a tenant will have a statutory right to repayment of the proportion of rent paid in advance in respect of a period falling after a section 21 notice has brought the tenancy to an end.
4) A Section 21 Notice must now be given on a prescribed form (section 37 DA 2015). The prescribed form must be used for all ASTs created on or after 1 October 2015 except periodic tenancies which have come into being after 1 October 2015 but which were fixed term ASTs before 1 October 2015. It may however, be used for all ASTs.
5) A Section 21 Notice cannot be served where the tenant has resided in the property for less than four months (section 36 DA 2015), meaning that the practice of serving Section 21 Notices on the first day of a tenancy will no longer be possible.
6) A landlord is prevented from using the Section 21 procedure as a form of retaliatory eviction. This means that a landlord cannot serve a Section 21 notice when a tenant has made a written complaint about the condition of the premises or the common parts of the building and the landlord has not responded, or has given an inadequate response (sections 33 and 34, DA 2015).
7) A Section 21 Notice must state the date after which the tenancy will come to an end, but this is no longer required to be the last day of a period of the tenancy, even for periodic tenancies (section 35 DA 2015).
8) If the AST is for a fixed term, the Section 21 Notice will only be valid for 6 months from the date of issue, meaning that any claim for possession must be started within this period, failing which a fresh notice will have to be served. If the AST is a periodic tenancy, the time limit is 4 months from the date specified in the Section 21 Notice.
As detailed above, the changes come into force on 1 October 2015 and will only apply to ASTs granted on or after that date. However, from 1 October 2018, the rules will apply to any AST (except for the requirement for the landlord to provide prescribed information about rights and responsibilities of the parties under an AST).
Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.
For further information, please contact Kenny Friday at