A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
UPDATE: the s21 Regulations have, as of today, been amended as there was a serious error in the prescribed section 21 notice form. This has now been rectified and the correct section 21 notice can be accessed using the link at the bottom of the page. This note has also been updated to clarify some important points from our earlier briefing.
New Rules and Form for section 21
There is a new prescribed form for s.21 which must be used for new ASTs which started on or after 1 October 2015. It may also be used for existing tenancies. It does not have to be used for periodic tenancies created after 1 October on the expiry/rolling over of a fixed term which began before 1 October 2015.
Do note that the original new section 21 prescribed form notice contained an error at part 3, which said that the notice is only valid for four months from the date of issue for periodic tenancies. This is incorrect. The notice is valid for four months from the date after which possession could be required.
There are also further regulations as follows (hardly “deregulation”!):
- Gone are the days of serving a s.21 notice at the start of a tenancy. No s.21 notice can be served within the first 4 months of an AST;
- Proceedings for possession can no longer be started within the first 6 months of the tenancy;
- As now clarified - Landlords essentially have 6 months from the date of issue of the s21 notice to start proceedings under fixed term ASTs. For properties under rolling/periodic tenancies the notice is valid for 4 months from the date after which possession could be required, (which is in effect 6 months) otherwise the notice expires;
- The requirement that the s.21 notice must expire on the last day of a period of a tenancy is gone! From 1st October, 2 months’ notice is all that is required for all ASTs now, which could therefore end in the middle of a ‘period of the tenancy’. As a result the tenant is given a right to claim back pro-rata rent if already paid in advance (s40 contains a simple repayment formula);
- For the few periodic ASTs granted with a quarterly or 6 monthly period of the tenancy (rare, save in the private rented sector) then the notice period cannot be shorter than a period of the tenancy. So, if there is a quarterly periodic tenancy, the s21 notice must give 3 months’ notice from date of service;
- For ASTs that begin after 1 October 2015 a section 21 notice can no longer be served/valid unless the tenant has already been provided with:
- An Energy Performance Certificate (EPC) for the property – which Landlords are (in most circumstances) already under an obligation to provide before the commencement of the tenancy; and
- A current gas safety certificate – which again, landlords are already under an obligation to supply to the tenant before they occupy the premises and after every annual check.
If the tenant has not had these 2 documents before (despite the fact that would be a breach of the other regulations which require landlords to provide them at the start of the tenancy), serve them before or with the s21 notice. They do not need to be served again with the s21 notice if they were issued at the tenancy start date.
Failure to comply with the above mean ‘no fault’ possession (accelerated possession proceedings) cannot be used until they are complied with.
Registered providers of social housing, unlike private sector landlords, escape a further requirement, to supply tenants on service of a s21 notice with an up to date version of the DCLG booklet “How to rent: the checklist for renting in England”.
The new rules initially apply only to ASTs in England granted on or after 1st October 2015. After 3 years (i.e. after 1 October 2018), they will apply to all AST tenancies whenever they began.
Preventing retaliatory eviction
This has been a hot topic in the media (landlords evicting tenants for complaining about disrepair). The Government has responded by introducing a somewhat convoluted procedure to regulate the issue, throwing in further amendments to the s.21 procedure for private landlords. Private registered providers of social housing are, however, specifically exempted from these requirements. (Section 31).
These steps are however likely to increase the number of requests for local authorities to serve Improvement notices.
These new provisions under the Act have been in force from 26 March 2015 and introduce rules about the provision of information to tenants and sanctions for non-compliance. There is a ban on section 21 notices being served at a time when the deposit is not being held in accordance with an authorised scheme (s.31).
The Act and new Regulations mean you need to:
- Review policies and procedures for ASTs;
- Change the s.21 notice form being used;
- Make sure EPCs and gas safety certificates are served at the start of tenancies failing which serve before/with section 21 notices;
- Double check compliance re tenancy deposits e.g. for any market rent or keyworker ASTs.
How can we help?
- We are offering updating s21 notice training to avoid being inadvertently tripped up by the new rules.
- We will cover these changes in outline at our Housing Management Law Update on 11 November 2015 10am-12.30pm at our offices. Click here to book.
- The new and updated section 21 notice form is available here.
- Clients can request a Word version of the new section 21 notice by emailing Katey.Slaughter@anthonycollins.com.
- If you own or manage private sector housing in a non registered body, then see our private sector focused briefing.
For more information
Contact Helen Tucker.
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