A valid Section 21 Notice seeking possession is only valid if a number of requirements are first satisfied, with potentially disastrous consequences if they are not. From 1 October 2018, the requirements will apply to all Assured Shorthold Tenancies (AST).
- Deposit requirements If you receive a deposit it must be lodged in a tenancy deposit scheme authorised under Part 6 of the Housing Act 2004 and you must provide the prescribed information to the tenant, within 30 days of receipt.
If these requirements are not complied with by the Landlord, then a valid Section 21 Notice cannot be served. The Landlord can rectify the situation by repayment of the deposit or belatedly providing the prescribed information, if that is the only requirement that has been missed.
However, the tenant can apply to the County Court that the Landlord has not complied with its obligations in relation to the initial requirements in protecting the deposit and providing the prescribed information and, if proved, the Court must order a return of the deposit and also order the Landlord to pay the tenant a sum of money equal to between one and three times the amount of the deposit that was paid.
If the initial requirements regarding the deposit are not met by the Landlord, even if they subsequently rectify the situation by repaying the deposit or providing the prescribed information belatedly, they cannot use the accelerated procedure to obtain possession of the property, but must use the normal possession procedure, which will require a Court hearing.
- A s21Notice cannot end an AST before the fix term ends unless there is a break clause.
- A possession order may not take effect earlier than six months after the beginning of the original tenancy.
- Tenancies granted after 1 October 2015
The Deregulation Act 2015 imposed a number of further requirements on tenancies granted after 1 October 2015:
a) A prescribed form of Section 21 Notice (Form 6A) can now only be used. For those tenancies granted before 1 October 2015 there is no prescribed form, although Landlords can use the new Section 6A Notice if they wish.
b) An Energy Performance Certificate (EPC) must be provided free of charge to the tenant before the tenancy commences. It could be an absolute defence to a Section 21 Notice if you fail to do so.
c) A Gas Safety Certificate must be provided to the tenant at the commencement of the tenancy and a valid Gas Safety Certificate must be in place throughout the tenancy. Failure to do so before the tenant takes up occupation is a defect that cannot be resolved and therefore may be an absolute defence to a Section 21 Notice.
d) “How To Rent: A Checklist for Renting in England” booklet. Landlords must provide a document entitled “How to Rent: A Checklist for Renting in England” (as published by the Department for Communities in Local Government) that has effect for the time being. The latest version was issued on 10 July 2018. You must provide a hard copy of the booklet or, if the tenant agrees, a pdf copy. It is not sufficient to send a link to the booklet via email to the tenant.
e) Some local authorities require Landlords to licence properties let on a residential tenancy, due to it being in a selective licensing area or subject to HMO requirement. If a licence is required but you fail to obtain one then a Section 21 Notice is automatically invalid
f) A Section 21 Notice may not be given within the period of four months beginning on the day on which the (original) tenancy began.
g) A Section 21 Notice is only valid for six months.
h) No "relevant notice". A relevant notice is:
- An improvement notice under Section 11 and Section 12 of the Housing Act 2004
- Notice under Section 40 (7) of the Housing Act 2004 (Emergency Remedial Action). A Section 21 Notice may not be given within six months of receiving a relevant notice in relation to the property.
From 1 October 2018 these further requirements will apply to ALL ASTs, whenever they commenced. Any Landlords that have tenancies that commenced before 1 October 2015 are strongly advise to double check that if you have not already complied with all the above requirements that you now do so immediately.
A little bit of housekeeping now, before 1 October 2018 will no doubt save you both heartache and expense in the long run.
Gary Leverett can be contacted by phone on: 01603 724654 and by email at: email@example.com.