Landlords beware! There is increased complexity and confusion around serving notices to tenants, together with changes to what is required prior to a valid notice being served. Siobhan Perrigo, Litigation Lawyer at Anderson Rowntree, summarises the issues that may trap the unwary.
A section 21 notice is the first step by landlords to regain possession of their property, either two months before the expiry of the fixed term of the tenancy (of no less than 6 months) or after the fixed term has expired. After 1 October 2015, a raft of changes was introduced in England that altered what a landlord needed to do a prior to validly serving notice on their tenants. After two years in play though, the law is still tripping up many.
The Deregulation Act 2015 has amended Section 21 of the Housing Act - the common route used by landlords to regain possession of a rented property. The Act does not affect any changes to Assured Shorthold Tenancies (ASTs) of properties in Wales. However, from 1 October 2018, these rules will apply to any AST with limited exceptions.
The new requirements only apply where an AST, with a minimum period of 6 months, was granted on or after 1 October 2015 including a written renewal on or after that date. They exclude other types of tenancies including Statutory Periodic Tenancies or where the original fixed term tenancy was granted before the 1 October 2015.
These requirements mean that landlords must provide:
- An Energy Performance Certificate (EPC) to a tenant free of charge; and
- A gas safety record
- Certain prescribed information relating to the rights and responsibilities of the landlord and the tenant under an AST, as set out in the Government booklet How to rent: The checklist for renting in England.
We will examine each of these elements in turn:
Energy Performance Certificate (EPC)
Any EPC should be obtained within 7 days of marketing and given to a ‘prospective’ tenant at the time of viewing under the EPC legislation. At the moment though, this time limit is excluded and The Energy Performance of Buildings Regulations 2012 only make reference to “The relevant person must ensure that a valid energy performance certificate has been given free of charge to the person who ultimately becomes the … tenant.”
This means that even if an EPC wasn’t provided at the viewing, as long as it is provided at some point before the section 21 notice is served, this should be fine.
Gas Safety Record
Under gas safety legislation, a gas safety record must be provided before a new tenant occupies the property and within 28 days of any new record being produced for each appliance and flue (which must be within 12 months of install or the last record).
If a gas safety record was provided at the start of the tenancy, but further annual records during the tenancy were not given within the 28 day period, then a Section 21 notice is still valid, as long as the further record is provided to the tenant prior to service of the notice.
If there is a failure to provide the gas safety record to any new tenant before that tenant occupies, this could be an absolute bar on serving a section 21. A landlord in this situation may face difficulties in obtaining possession under section 21 and may have to rely on section 8 reasons.
Providing tenants with Information
The prescribed information for EPCs and Gas Safety Records are in the Government booklet “How to rent: the checklist for renting in England”. It can be given in hard copy or where the tenant has notified the landlord/agent of an email address where the tenant is prepared to accept service of notices, by email.
However, the landlord does not have to provide a further copy whenever the booklet is updated, during the course of the tenancy. Where a ‘new’ replacement tenancy has been granted, there is no requirement to give a further copy, unless there is a new version of the booklet out before the first day of the new tenancy.
The new requirements go further in protecting tenants from a retaliatory eviction by a landlord. In the situation where a tenant notifies the landlord or agent of a problem, the landlord would have a reasonable time to sort out the problem.
If this does not happen, the tenant could complain to the council who then inspect the property and an improvement/remedial action notice is issued. The validity of a section 21 notice served on the tenant after receipt of the remedial notice is questionable and is then likely to be invalid.
If, however, a possession order has already been made, a subsequent notice by the Council has no effect in overturning the possession order.
There is an exception for the defect/issue being caused by untenant-like behaviour, or where the property is up for sale (with restrictions).
The process is reliant on Councils reacting and serving notice within the ‘section 21 notice period and possession proceedings before possession order’ timescale. This could be 3 months or maybe less, depending on a ‘reasonable period from tenant’s notice and the date of the Section 21 having been served. This action by the council is crucial.
Timing (and advice) is everything
The new Section 21 Housing Act 1988 removes the need for any Section 21 notice to expire on the last date of a period of a tenancy in England. Two months notice (for a weekly or monthly rent period) is all that is required.
Tenants must be repaid pro rata for the ‘unused’ proportion of any rent paid in advance where the Section 21 expires in the course of a rent period and the tenant leaves.
A Section 21 cannot be served in the first 4 months of a tenancy and a possession claim cannot be started after the end of 6 months, from the date the notice was given.
Overall, there is scope for plenty to go wrong here. There has been a lack of information on these changes. The requirements for providing an EPC and gas certificate before the tenant moves in will no doubt trip up quite a few landlords and agents. Likewise, the ban on service of a notice within the first 4 months of a tenancy will catch out those who seek to serve one on day one of the tenancy.
Landlords should arm themselves with the best advice in what is now becoming an ever more complex and confusing arena.
Siobhan is based in our Petworth Office and has many years experience in handling complex and successful civil litigation cases, including landlord and tenant law. To discuss your situation or requirements, call her on 01798 342391 or email firstname.lastname@example.org