Section 21s after October 1st 2015 - Frequently asked questions V3-JW-20151016
As of October 1st 2015, landlords will face a number of changes relating to service of Section 21s. To help keep landlords up to date with all these changes this guide provides answers to the most frequently asked questions around serving a Section 21 notice after the Deregulation Act.
Which tenancies will be affected?
New assured shorthold tenancies in England starting from October 1st 2015 onwards will have to use the new standardised Section 21 form and abide by all the requirements for valid service. New for these purposes includes the renewal of tenancies but not statutory periodic tenancies.
For tenancies in Wales and those in England that started before October 1st 2015 the old service of notice applies and can be found here.
Where is the new Section 21 form?
The RLA provides one for members here. Please note that this is the second version provided by the government and if members have downloaded other copies from elsewhere they need to make certain that their version looks like this. Any other version will be invalid.
I have an older tenancy, can I use the new form?
Yes but as there are multiple additional restrictions on the new form it will rarely be preferable.
What notice period will I need to give?
Unlike the old Section 21(4)a notices, there is no need for landlords to end their notice at the end of a period of a tenancy. As a result, a two month notice period will be all that is needed in most circumstances. Where a contractual tenancy period runs six monthly or yearly, landlords will still need to give an appropriate matching period of notice (e.g. 3 months' notice for quarterly tenancy periods, 6 months' notice for biannual and above).
As always, a Section 21 notice period cannot end during a fixed term.
How long will a Section 21 last?
Section 21s will now last 6 months from the date of service in most circumstances. For contractual periodic tenancies requiring more than two months' notice, possession proceedings will need to be started within 4 months of expiry of the notice.
It is a case of use it or lose it so if you let the notice run out without starting Court proceedings it is no longer effective and you would have to re-serve the notice if you did subsequently want to take Court action.
When can I serve my Section 21?
A Section 21 cannot be served in the first 4 months of the original tenancy but it may be served at the outset of a replacement tenancy. In practice however, the new six month lifespan means landlords should get into the habit of serving the Section 21 form as and when it is needed rather than habitually.
If, however, the tenant has actually moved out on or before the last day of the fixed term itself (as opposed to the expiry date of the Section 21 notice) then the tenancy ends automatically at the end of the fixed term so no further rent would be payable beyond this date.
How will I serve a Section 21 notice to expire on the last day of a 6 month tenancy if I cannot serve in the first 4 months?
You cannot. Notice periods will now expire a few days after the end of a 6 month fixed term. If a tenant moves out on the final day of the notice period the Deregulation Act makes it clear that landlords should repay the remainder of the rent for the month to the tenant. Therefore, the tenant is only liable for rent for the few days he/she remains in occupation beyond the last day of the fixed term of the tenancy.
What do I need to serve a valid Section 21 notice?
For tenancies after October 1st 2015 a valid Section 21 can only be given when the tenant has been provided with a copy of a valid EPC, Gas Safety Certificate and the most recent version of How to rent: The checklist for renting in England. This should all be provided at the start of the tenancy. Additionally, if an updated gas safety certificate is obtained during the course of the tenancy a copy of this must have been given to the tenant.
For new and old Section 21 notices the deposit needs to be protected correctly and the prescribed information given to all relevant parties if a deposit was taken. If the property is an HMO that requires a licence then that should also be in place before service. Likewise if the property is within a selective licensing area.
Finally, the landlord will also not be able to serve a valid Section 21 notice if they are caught by the new legislation on retaliatory eviction.
What is retaliatory eviction?
Retaliatory eviction is where a tenant informs the landlord of a repair that needs to be performed and the landlord serves an eviction notice in response.
How does this affect Section 21s?
Landlords will not be able to serve a valid Section 21 if;
the tenant has made a written complaint to the landlord about the condition of the property prior to its being served; and
the landlord has not provided an adequate written response within 14 days (this does not mean the work actually has to be done within this period); and
the tenant has then complained about the same matters to the relevant local authority who have decided to serve an Improvement Notice in respect of the property or have carried out emergency remedial action themselves using their powers under the HHSRS.
What is an adequate response from the landlord?
An adequate response is a response which defines the actions the landlord is proposing to take to deal with the complaint and sets out a reasonable timescale for doing so. This does not mean the work actually has to be done within this 14 day period.
I have already had an Improvement Notice from my council. Can I serve a Section 21 notice?
No, you cannot serve a Section 21 notice for six months after an Improvement Notice.
I served a Section 21 before the tenant reported the issue. Will my Section 21 be valid?
Yes, the repair needs to be reported before the Section 21 is served for it to be a retaliatory eviction.
The tenant reported the repair before I served the Section 21 but no Improvement Notice has been issued yet. Is it still valid?
Potentially. If an Improvement Notice is issued before the possession order is granted then the Section 21 will become invalid. Landlords will have to make a judgement call in these circumstances as a judge could potentially use general case management powers to adjourn possession decisions.
What if the tenant caused the damage?
There is an exception if the Improvement Notice is issued based on a defect or issue caused by the tenant.
Are there any other exceptions?
Yes, if a landlord is genuinely trying to sell the property then the retaliatory eviction legislation does not apply. It does not prevent a claim for possession being made on the grounds of rent arrears including mandatory possession proceedings under Ground 8 for two months rent arrears; nor a claim for possession on grounds of breach of tenancy etc.
Where can I find How to rent: The checklist for renting in England?
The RLA has set up a page to archive all copies of this booklet to assist landlords. It will always have the most up to date version available as well as the date on which it came into force.
How do I serve How to rent: The checklist for renting in England?
Landlords should provide the most recent copy of How to rent: The checklist for renting in England at the outset of the original tenancy. There is no need to provide updated versions whenever the government updates this booklet. However, if an update has taken place and a replacement tenancy is granted then landlords will need to provide an updated version. There is a provision for this prescribed information to be provided electronically so long as the landlord has the email address and consent of the tenant. Letting agents and landlords should make amendments to their tenancy application forms to get the tenants prior consent.
What about service of gas safety and energy performance certificates?
The new regulations make specific provision for the service of the prescribed information electronically. They do not make specific provision for service of either the gas safety certificate or the EPC via email. The safest option for landlords will be to provide copies to every tenant at the outset of the tenancy in paper format to minimise problems if a Section 21 is needed later on.
How am I meant to show I have complied with all of this?
Good record keeping is essential. Landlords would be wise to have a tenancy checklist that the tenants can sign at the outset of the tenancy to confirm receipt of all of the relevant documents. The RLA has already drafted one for use by our members.
It may also be advisable to provide repair request templates to the tenant so landlords can show the timeline where repairs were reported if challenged on this later in relation to retaliatory evictions.