Since the implementation of the Deregulation Act on 1st October 2015 there have been a lot of changes to the rules around Section 21 notices and after visiting one of the local landlord forums there was still a lot of confusion so I thought it would be useful to clearly explain the changes so you don’t get caught out.
These changes apply to tenancies entered into on or after the 1st October 2015.
The main changes to be aware of are:
• There is a new Section 21 Notice (Form 6A) that needs to be used as standard. You can download the form here which includes some explanatory notes.
• It will no longer be possible to serve a Section 21 Notice until the tenant has lived in the property for a minimum of four months. This is to stop landlords serving a Section 21 Notice as soon as a tenant moves in. As before, the notice can’t expire in any event before the end of any fixed term.
• A Section 21 Notice will only be valid for six months from the date it was given. This means that if the tenant doesn’t leave, possession proceedings must be commenced within six months of the service of the Section 21 Notice. Different rules apply where the notice period set out in the tenancy agreement is more than two months.
• A Section 21 Notice will no longer be invalid if the date of possession given on it is not the last day of a tenancy period. This has traditionally been one of the main reasons that a Section 21 Notice fails. As long as a full two months’ notice is given, the Section 21 Notice will be valid.
Landlords will be unable to serve a Section 21 Notice if they breach any of the following legal obligations to a tenant;
• Failure to provide an Energy Performance or valid Gas Safety certificate.
• Failure to properly register the tenant’s deposit and issue the prescribed information within the new legal time frame.
• Failure to provide the tenant with the government ‘How to Rent‘ guide..
• In addition, where a tenant has raised an issue to the landlord or agent in writing about the condition of the property and there has been a failure to action and resolve this complaint in a timely manner, the tenant will need to complain to the local authority. Until the local authority has decided whether to issue a Relevant Notice (e.g. improvement notice) on the landlord for works to be carried out then a Section 21 Notice cannot be relied upon. If a Relevant Notice is served by the local authority, a section 21 notice cannot be served for six months from the date of that notice. If the landlord/agent adequately responds within 14 days and the work is carried out this will have no impact on a Section 21 notice. The landlord will have a defence in circumstances where the tenant has failed to use the property in a tenant like manner or the disrepair is due to a breach of the tenants obligations under the tenancy agreement; where a mortgagee is seeking possession; or where the property is genuinely on the market for sale at the time the Section 21 notice is served.
• When a Section 21 Notice is served, all rent that has been paid for any period where the tenant ceases to lives in the property must be repaid to the tenant. This has implications where a tenant who has paid their rent decides to leave when they receive the Section 21 Notice rather than when the notice expires. Where a tenant pays a full month’s rent but then is required by the Section 21 Notice to vacate or voluntarily vacates mid-way through the month, the tenant is entitled to be reimbursed the overpayment of rent for that period.
Ensuring you comply
As the landlord you will need to prove that you have given the tenant the required information at the start of the tenancy. We have created a Tenancy Commencement Checklist that you can fill out and have the tenants sign on check in. To grab your copy, and ensure compliance, simply register for our newsletter and email us to request a copy.