Changes to Section 21 notices coming in 2018

For those of you who are familiar with residential tenancy disputes, you will no doubt be aware that in order to evict a tenant there is an ever-changing procedure to follow… well that procedure is about to change, again!

There are currently two regimes in respect of serving section 21 notices:

1. Notice during the transitional period under section 41 of the Deregulation Act 2015 (“DA 2015”); and
2. Notice under the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“ASTNPRR”)

For the duration of the three-year transitional period under section 41 of the Deregulation Act 2015, i.e. 1 October 2015 – 30 September 2018, the requirements as to the form of notice, and other requirements for serving a valid section 21 notice in respect of tenancies entered into before 1 October 2015 remain as before. That is to say, in general, a landlord need only serve notice in writing providing the tenant at least two months' notice of the landlord's specified date for possession, which cannot be earlier than the date on which the fixed term is due to expire. This is subject to compliance with the Tenancy Deposit Scheme (“TDS”).

The new provisions under DA 2015 apply to English tenancies which were entered into on/after 1 October 2015 (or renewals of fixed term tenancies entered into before 1 October 2015 which did not first become a Statutory periodic tenancy). On 1st October 2018, the new provisions will apply to all English tenancies.

New Section 21 Pre-Conditions to Service

There are various pre-conditions to serving a section 21 notice under the new procedure. Under the new procedure, a section 21 notice cannot be served where:

1. A landlord has failed to comply with TDS;
   
2. A landlord has failed to provide an Energy Performance Certificate (“EPC”) to the tenant before the tenancy commences;
   
3. A landlord has failed to provide a Gas Safety Certificate (“GSC”) to the tenant before the tenancy commences;
   
4. A landlord has failed to provide the tenant with the prescribed information on how to rent.; and
   
5. A Landlord is deemed to have served the notice as a ‘retaliatory eviction’.

New Section 21 Notice

Under the new provisions, a section 21 notice cannot be served in relation to a fixed term Assured Shorthold Tenancy (“AST”):

1. within four months from the beginning of the AST, or
   
2. in the case of a replacement AST, within four months from the beginning of the original AST.

A notice must be served under HA 1988, para 21(1) or (4), under the new procedure, must be in writing using the new prescribed Form No 6A. The new Form No 6A states that the landlord should allow two days for service if being sent by ordinary first-class post. This must be considered alongside any service of notice provisions in the tenancy agreement itself.

New Section 21 Deadline for Issuing Proceedings

Proceedings for a possession order cannot be commenced more than six months after the section 21 notice is served.

This is subject to the proviso that where the date specified in a notice served under HA 1988, s 21(4)(b) needs to be more than two months after the notice was given (for example, because it is in respect of a quarterly contractual periodic tenancy), proceedings cannot commence more than four months after the date specified in the notice.

Comments from a landlord solicitor

The procedural requirements are onerous and so it is imperative to tread carefully. A few pointers however, when serving or receiving a section 21 notice:

1. Ensure that the notice is in the prescribed Form 6A;
   
2. Ensure that the rules under the TDS have been complied with;
   
3. Ensure that an EPC, GSC and prescribed information on how to rent has been served at the commencement of the tenancy; and
   
4. Ensure that the service of the section 21 is undertaken in compliance with both the statutory and tenancy provisions (this may require serving two sets of notice, one without prejudice to the other)

If you are caught in a landlord and tenant dispute, Holmes & Hills Solicitors are on hand to step in and guide you through the process or pursue the matter on your/your client’s behalf.