Important Changes – Residential Possession
'Landlords and their agents and solicitors must take heed of the new rules. Failure to comply with these new requirements could result in a court treating a section 21 notice as invalid'
The misleadingly titled Deregulation Act 2015 has introduced a number of changes in respect of a residential landlord’s ability to bring an assured shorthold tenancy (AST) to an end. These changes came into force on 1 October 2015. This is an overview of the changes of which landlords need to be aware:
- A landlord can no longer serve a ‘retaliatory’ notice under section 21 of the Housing Act 1988 when a tenant has made a written complaint to the landlord about the condition of the premises or the common parts of the building and the landlord either did not respond within 14 days, provided an inadequate response or responded by serving a section 21 notice. In these circumstances, the tenant can complain to the local authority which can serve appropriate enforcement notices on the landlord. If this happens the landlord cannot serve a section 21 notice within six months of the date of service of the enforcement notice (or, if the operation of the notice has been suspended, within six months of the date on which the suspension ends). There are, however, a few key circumstances where these new rules will not apply:
- Where the tenant is in breach of its duty to use the property in a tenant-like manner;
- Where the property is subject to a mortgage granted before the start of the AST and the mortgagee needs to exercise their power of sale with vacant possession;
- If the landlord is a registered provider of social housing; or
- If the property is genuinely on the market for sale at the time the section 21 notice is given. Note that an intention to sell to a family member or business partner will not satisfy this exception.
- A section 21 notice can no longer be served in the first four months of an AST. Landlords often serve a section 21 notice at the start of a tenancy to terminate it at the end of the contractual term, but this option will no longer be available.
- A claim for possession must be started within 6 months from the date the section 21 notice was served, or, if a section 21(4) notice giving more than 2 months’ notice was served, within 4 months from the date specified in that notice. A new notice must be served if possession proceedings have not been started within these time limits.
- A landlord cannot serve a section 21 notice unless, before doing so, it has provided the tenant with an Energy Performance Certificate, a gas safety certificate and a copy of the DCLG booklet “How to rent: The checklist for renting in England”.
- A new prescribed form of section 21 notice must be used. There is no longer a need for a landlord to specify the last day of a period of the tenancy as the date on which the tenancy comes to an end, including in relation to a section 21(4) notice.
- The tenant has the right to a rent apportionment of rent paid in advance, in respect of a period falling after a section 21 notice brings the tenancy to an end.
Landlords and their agents and solicitors must take heed of the new rules. Failure to comply with these new requirements could result in a court treating a section 21 notice as invalid, with inevitable additional costs and delays in recovering possession.
Tips for landlords
- Pay attention to any written complaint by a tenant about the state of the property or an allegation of disrepair and take care to provide an adequate response. An adequate response to a complaint is one which provides a description of the action that the landlord proposes to take to address the complaint and sets out a reasonable timescale within which that action will be taken.
- Do not serve a section 21 notice at the start of a tenancy, or within the first four months of the tenancy.
- Bring proceedings for possession promptly, and certainly within six months, to avoid the notice lapsing.
08 Oct 2015