New Rules for Section 21:
Landlords and Agents need to be aware of the changes affecting Section 21 rules and Notices and other changes for the letting of residential properties in England (and in many cases Wales) introduced during 2015 . This article explains the new rules in detail and gives suggestions and strategies on how to deal with them successfully.
These guidelines apply primarily to England. Other regions and jurisdictions are similar but there may be important differences and this is becoming more so in the UK with the devolution of laws. This is not a definitive interpretation of the law, every case is different and only a court can decide. If in doubt seek expert advice.
With the changes to tenancy laws, especially those rules coming in from 1st October 2015, landlords and agents need to be more diligent than ever if they are to avoid problems in the unfortunate event that a problem tenant has to be evicted.
The no-fault s21 eviction process (see below) is the safe way to go about evicting, but the new rules bring in a lot more loop-holes that a savvy tenant, especially one with legal advice, can crawl through. One error in the process committed or omitted by the landlord or agent can stymie any legitimate possession claim.
The key to this is accuracy in documentation, documentation, and documentation – without written evidence your eviction claim will fail, there’s nothing more certain, so you need to think this process through from the day your new tenant enters the property.
This is the documentation we recommend, available to download free here
|Telephone Enquiry Form||This is a checklist to record basic information on first contact.|
|Pre-Tenancy Interview Form||This is a form to record your pre-tenancy interview normally at the time of the viewing. This is a checklist for questions and is important as it shows that you put everyone through the same process, to avoid claims of discrimination.|
|The Tenancy Application Form||One for each adult resident. Collects all the background information on the individuals for credit checking, referencing and “right-to-rent” checks. Tenants sign and acknowledge the terms & conditions and it covers you for the Data Protection rules on sharing information.|
|The Letting Checklist||This form is a checklist we have produced to remind you of all the items in the letting process you must follow under the new rules.|
|Check-in and Check-out Checklist||This is a checklist we have produced which reminds you of the details you must cover especially when checking in a new tenant. It is important to get the ingoing tenant/s to sign and acknowledge that you have carried ALL these important tasks.|
|The Inventory||Having an inventory, preferably one produced by an independent inventory clerk, is the best safeguard for your property and is vital if you are to make a claim against a protected deposit.|
|Risk Assessments||There is a legal duty for landlords to assess and control the risk of exposure to legionella bacteria, but Health and Safety law does not require landlords to produce or obtain, nor does HSE recognise, a “Legionnaires testing certificate”. It is recommended but not compulsory that landlords carry out a risk assessment. This shows you have identified any risks and taken appropriate action. This is a simple common sense process which proves you have taken all necessary precautions and done what is required. A full property safety risk assessment between tenancies is always a good idea.|
|Right to Rent Declaration||Following Right to Rent legislation introduced for all AST tenancies in England from February 2016, it is a legal requirement for landlords / agents to face-to-face verify right to rent documents (passports / visas, etc), take copies of these and keep for future reference. The declaration is a document to provide evidence that these procedures have been followed, to provide a record of the documents the tenant/s are putting forward and a statement of truth.|
This may seem like a whole lot of hassle, and perhaps it is an administrative burden, but unfortunately that’s the way things are now – compliance documentation is coming into everything we do in financial and commercial transactions.
Note: The changes below refer to new tenancies created on or after the 1st of October 2015 and existing tenancies after 3 years from that date. A statutory periodic tenancy arising after the 1st October 2015 is not deemed to be a new tenancy in this regard, but a replacement tenancy. When a new AST agreement is signed, this is a new tenancy. The changes have no affect on the Housing Act 1988 Section 8 Notice and procedures for rent arrears.
For tenancies commencing before 1st October 2015, use the old style s21 notices. You can use the new prescribed 6A form s21 notice for older tenancies, but if you do you will need to make sure you have conformed to all the other new requirements – see below.
Changes to S21 Notice Procedure
A number of changes to Section 21 possession claims are brought in after 1st October 2015 under the new rules set out in the Deregulation Act 2015.
Any new Assured Shorthold Tenancy (AST) in England starting on or after the 1st October 2015 will require the new Standardised Section 21 (6A) form and the landlord or agent MUST conform to the new requirements, the main ones being:
- Provide the tenant/s with a current copy of the 10 year Energy Performance Certificate (EPC) for the rental property, when letting information is given or at the viewing whichever is sooner, and before the tenant enters the proeprty.
- Provide the tenant/s with a current copy of the annual Gas Safety Certificate for the rental property before the tenant enters the property.
- Provide the tenant with a current copy of the Government Booklet: How to rent: the checklist for renting in England This MUST be the latest available version at the time of letting and on a tenancy renewal.
- Protect any Tenancy Deposit taken, plus serve the statutory information (s213 notice) and the scheme’s information leaflet within 30 days of receiving the deposit. Always get proof of service and remember that the statutory notice must provide reference to the clause in the tenancy agreement which spells out the circumstances under which monies can be withheld, e.g., rent arrears, service changes, damage etc.
You must be able to prove you did all this by having some sort of proof of service, or signed documents from your tenant/s.
It is very important to serve all of these notices at the commencement of the tenancy. Serving them later may invalidate any section 21 notice served.
For existing tenancies which started before 1st of October 2015 and until 1st of October 2018 you should continue to use the old Section 21 notices – fixed term s21(1)(b) and periodic s21(4)(a)
Changes to Notice Periods:
- The new Section 21 notice cannot be served in the first 4 months of the original tenancy but it can be served at the start of a tenancy renewal.
- Once served the s21 lasts for a maximum of six months, during which time court action must be started, otherwise a new notice will need to be served.
- The new notice does not require an end date or to end on the last day of a tenancy period. It is simply 2 months’ notice. The exception to this is where the tenancy is contracted for quarterly or longer periods, in which case this rent period would be the length of notice required.
- Where the tenancy is a contractual periodic one, possession claims will need to start within 4 months of expiry of the notice.
- For 6 month tenancies it will not be possible to end the tenancy at the end of the term, but most likely it will be a few days into the next rent period. Because of this anomaly the legislation says that landlords must repay the over-payment of any rent.
Evictions and Applying for a Possession Order
Having correctly served a Section 21 notice under the new rules and waited for the 2 months’ notice period to expire, you can then apply for a possession order using (1) The Accelerated Possession (Court form N5b) route with no court hearing, or the Standard Possession route (form N5) where a court hearing will be required, but a money claim can be added.
This is a three stage process: (1) s21 notice served, (2) apply to the court for a possession order, (3) if necessary, apply again to the court for a court bailiff eviction.
Certain basic information required by the court when applying for a possession order:
|Proof of service at start of tenancy: (1) EPC, (2) Gas Safe Certificate, (3) How to Rent Booklet||If you have completed the recommended paperwork above you will have this proof|
|Copies of the EPC and Gas Safe Certificate for the Court||All documents sent to the court should be in 3 copies|
|Copies of the Tenancy Agreement||Showing tenancy dates, property and tenant/s details, signed, and with all details matching exactly those on the s21 notice and the other documents|
|Copies of the Section 21 notice||With proof of service|
|Copies of Tenancy Deposit Protection Details and Prescribed information (s213) as served||With proof of service|
|Copies of any Landlord Licence required for the property||Where the property is an HMO or is in a licencing scheme location.|
On receipt of your claim the court will write to your tenant/s to give them 14 days to respond with a defence. If your tenant should claim that some of the above critical documents were not received, or they were defective in some way, then unless you have proof, your claim may be thrown out.
One of the key issues addressed in the Deregulation Act 2015 is that of the so called retaliatory or “revenge” eviction. This is where a landlord starts the eviction process upon receiving a complaint about repairs, rather than taking appropriate remedial action.
For new tenancies started on or after the 1st of October 2015 (and all tenancies after 1st October 2018) a valid section 21 notice cannot be served where a tenant has notified the landlord of a repair issue AND a council Improvement Notice has been issued. The tenant MUST have made a written complaint to the landlord about the condition of the property BEFORE the section 21 notice was served.
The landlord must then “provide an adequate written response within 14 days”. That would be a letter setting out a plan of action with timescales for the repairs.
Where the tenant also complains to the relevant local authority and they subsequently issue an Improvement Notice, then a valid Section 21 notice cannot be served for 6 months after the Improvement Notice is issued.
Where a tenant complains and the landlord responds, but still issues a Section 21 notice; this could go through, providing no Improvement Notice is issued before a possession order is granted by the court.
Exceptions to Retaliatory Eviction
- If the property is genuinely on the market for sale
- If the property is the subject of a mortgage repossession order
- If it can be shown that the tenant caused the dis-repair.
On the last point, disrepair by the tenant may be difficult to prove or contentious. For example, mould caused by condensation is often down to the tenant not having sufficient heating and not ventilating steam and moisture form the property, perhaps when drying clothes.
It’s a good idea to build a record of success for a rental property by having tenants complete an end of tenancy survey. In this way, if you can show the property has a track record of satisfied tenants without condensation and mould, it is pointing to the tenant/s being at fault, and will be very good evidence in case of a dispute. You can download an End of Tenancy Survey here
You should keep a journal of all contacts you have with tenants, recording the date, time and subject of all contacts, contemporaneous evidence of what is said, promises made to your tenants when dealing with repairs and other issues.
Important documents such as section 21 notices should be hand delivered and signed for, or served and witnessed by an independent person. Posting through the letter box is acceptable providing you have a witness. Where the tenancy agreement says so, notices can be served by first class mail – allow time for delivery.
Some documents can be delivered via e-mail, including the latest version of the “How to Rent” document, PROVIDING the tenant has agreed to this (the letting agreement says so), and the above forms will help with this. However, it is difficult to prove that an email has been received and read unless you get an acknowledgement (difficult in dispute), so surface mail correspondence, and/or e-mail in addition to surface mail might be prudent.
Most tenancies end peacefully by the tenant giving notice and leaving. However, a few end in acrimony where there is no option but to evict. It’s because of this that every tenancy needs to be treated with the utmost due diligence and caution if you want to bring a bad situation to an end quickly, and with the least possible legal expense.
It cannot be emphasised too strongly that creditable DOCUMENTARY EVIDENCE is vital in any legal process.
Read the Explanatory Memorandum to the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 no.1646 here
All the documentation we recommend is available to download: https://www.landlordzone.co.uk/documents
See also these notes on the Deregulation Act 2015 – Retaliatory Eviction and the new Section 21 Notices – here