Section 21 Notice new rules from 1 October 2015

Hello again,

This post will look at the changes to the Section 21 process for new Tenancies from 1 October 2015 under the Deregulation Act 2015, and the myriad of requirements it now places on the Landlord and/or Agent for the notice to be valid. Oh joy.

I must apologise about the length of this post, I take Landlord legal obligations very seriously so please send any complaints to gov.co.uk!

Time sensitive:

• Previously Landlords and Agents would often serve a Section 21 Notice on or before the Tenancy started (the latter being incorrect anyway).
• This will now not be possible. Under the Deregulation Act 2015 you cannot serve a Section 21 Notice until 4 months of the Tenancy has passed.
• If your Tenancy renews or becomes Statutory Periodic the initial 4 months have already passed.

Energy Performance Certificates (EPCs)

• EPCs must be provided to Tenants free of charge, my suggestion is by the Tenancy commencement date to avoid any potential confusion in court (worst case scenario).
• There is some conflict with HMO properties as an EPC refers the the ‘building’ as opposed to the ‘room’ being rented however my advice would be to provide it anyway and then you are covered.
• The best way to record the EPC being served is by having the Tenant sign and date a copy which is retained in the Tenancy file, alternatively you could send by email which is recorded.

Gas Safety Certificates (GSCs)

• As with EPCs a copy of the GSC must be provided to Tenants, my interpretation of the Regs is that (logically) this is done by the Tenancy commencement date.
• There is no mentioning of this being an on-going requirement during the Tenancy for each annual GSC.
• As before either have the Tenant sign and date a copy which is retained in the Tenancy file (best practice), alternatively you could send by email which is recorded.
• It is possible a Tenant will try to prevent access during a Tenancy

Prescribed Information

• Anyone who knows their onions will be saying ‘that’s fine because Prescribed Information is already a requirement under Tenancy Deposit Regulation’. Wouldn’t that be nice. Unfortunately I think the Govt have completely messed up here as, in relation to Section 21s Prescribed Information means the booklet found here.
• The booklet is a good idea as it informs Tenants what their rights and covers Deposit & GSC Regulation, which many are still unaware of.
• The booklet MUST be the current issue at the time of serving.
• Must be served as a ‘hard copy’ (printed) or by email.
• If you need to reclaim possession I would recommend re-serving the up-to-date booklet at the same time you serve a Section 21, just to be safe.
• The booklet MUST be served for any renewal of the pre-existing Tenancy. To be safe I would include the point if/when the Tenancy becomes a Statutory Periodic.

Retaliatory Eviction

• If a Tenant makes a maintenance related complaint the Landlord must give an ‘adequate response’ within 14 days. Adequate response would mean where the Landlord confirms what he/she is going to do to resolve the issue.
• If the Landlord obligations are not performed and the Tenant goes to the Local Authority to complain, AND they serve a notice on the Landlord to rectify the complaint a Section 21 Notice cannot be served for 6 months.
• Of if the Local Authority serve a notice on the Landlord without a Tenant complaint a Section 21 Notice cannot be served for 6 months.
• This does not apply where the Section 21 Notice was served BEFORE the complaint.
• The message here is to simply respond to and rectify Landlord obligated maintenance issues quickly.

New Section 21 form

• The Section 21 Notice is now a ‘prescribed form’, which means you must serve it with certain wording otherwise it is invalid.
• The new form can be found here.
• Relevant from February 2016 – because as you already know you cannot serve a Section 21 Notice before 4 months of the Tenancy has passed and the new Regs come into effect on 1 October 2015.
• I would not recommend using this form for all Section 21 Notices between now and 1 February 2016 as all of the above requirements will apply.
• While on the subject pre 1 October Tenancies no longer need the date of the expiry of the Section 21 Notice to be the same date as the last day of the Tenancy.

If you want the full details of the new Regs or you just enjoy reading you can find the Govt regs here, with some helpful explanatory notes here.

I tried to keep it as simple as I could and hope you made it through, if not you’re probably having a well deserved snooze. In short:

1. Make sure you or your property letting agent at least send the EPC, Gas safety certificate and up-to-date How to Rent booklets to the Tenant(s) by email no later than the Tenancy start date.
2. Don’t serve the Section 21 Notice before the 4 month point.
3. Ensure you respond to and rectify maintenance issues (Landlord legal obligations) within 14 days.
4. Use the new Section 21 Notice form for all Tenancies starting on or after 1 October 2015.

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