Deregulation Act 2015

From 1 October 2015, new requirements will apply before a landlord can serve a section 21 Notice to bring an assured shorthold tenancy (AST) to an end.

Landlords will already be familiar with the requirements regarding the protection of deposits and the obligation to provide the tenant with the “Prescribed Information relating to Tenancy Deposits”. The Deregulation Act 2015, will impose further obligations on landlords to provide additional information to tenants and will also prevent landlords from serving section 21 Notices at the beginning of the tenancy; a practice currently adopted by many managing agents.

What is the additional information?

In addition to the Prescribed Information relating to tenancy deposits, landlords will also now be required to provide the tenant with:

An energy performance certificate (EPC). The EPC must be provided free of charge.

A gas safety certificate. This is not a new obligation but the difference now is that a failure to provide the gas certificate will prevent the landlord from serving a section 21 Notice.
A copy of the “How to rent” guide. The latest version of the guide can be found at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/429420/HowToRent210515-digitalprint_May_2015.pdf. Landlords are not required to supply a further copy of the guide each time a different version is published during the tenancy but, if the landlord renews the tenancy, he must ensure that the tenant is provided with the current version on renewal.

Any section 21 Notice served at a time when the above information has not been provided will be invalid.

When can you serve a section 21 Notice?

It is common practice for managing agents to serve the tenant with a section 21 Notice at the beginning of the tenancy. This avoids forgetting to serve the Notice towards the end of the tenancy and guarantees that the tenant has been personally served.

However, from 1 October 2015, landlords will be prevented from serving a section 21 Notice at the beginning of the tenancy. Tenants will have to have been in occupation for at least 4 months before a section 21 Notice can be served. This is to ensure that tenants are actually given two months' notice before the tenancy comes to an end.

This rule only applies to new tenants i.e. it will not apply to statutory tenancies where the fixed term has expired or renewal tenancies where the tenant may have already been in occupation for more than 6 months under a previous tenancy.

Best Before Date

There has always been some uncertainty as to how long a section 21 Notice can be valid for. For example, could you rely on a section 21 Notice that expired over a year ago?

The new rules have cleared up this uncertainty. Sections 21 Notices will be valid for:

6 months from the date of issue if the notice period is 2 months; and
4 months from the date of expiry if the notice period has to be more than 2 months (e.g. because the tenancy is a quarterly periodic tenancy requiring a minimum of 3 months’ notice).

New Prescribed Form 6A

There is also a new prescribed form of section 21 Notice called a “Form 6A”.

The wording has been changed to reflect the above requirements and must be used for all ASTs granted on or after 1 October 2015. It is worth noting that there is a mistake at paragraph 3 of the new Form 6A, which is likely to be amended shortly but because this is a “prescribed form” landlords will have to keep using it regardless of the error.

It may also be used for ASTs granted before 1 October 2015 (although not mandatory) but this may cause the tenant confusion and/or lead them to believe that they can challenge the Notice on the basis that the landlord has not complied with the new requirements even though these do not apply to them.

When do the new rules apply?

The new rules will only apply to ASTs granted on or after 1 October 2015 including any renewal granted after that date.

They will not apply to ASTs granted before 1 October 2015 even if that tenancy becomes a statutory periodic tenancy on or after 1 October 2015.

However, from 1 October 2018, the new rules will apply to any AST regardless of whether or not it was granted before 1 October 2015.

CHECKLIST

When seeking possession under a tenancy granted on or after 1 October 2015 be sure to check if:

The tenant has been in occupation for at least 4 months
The tenant has been provided with the “How to rent” guide including a copy of the current version if the tenancy was renewed
The tenant has been provided with the EPC Certificate
The tenant has been provided with the gas safety certificate
The tenant’s deposit has been protected in a statutory scheme
The tenant has been provided with the Prescribed Information relating to tenancy deposits
You have used the new Form 6A
The section 21 notice was issued no more than 6 months ago (or no more than 4 months has expired)