Most tenancies will never require the service of a Section 21, Housing Act 1988, (eviction) notice. However, on those occasions when it does become necessary, and you just never know, landlords (and agents) will thank their lucky starts they complied with the rules, otherwise the eviction could be stymied.
Here, Tessa Shepperson of the Landlord Law website writes in her newsletter about using the correct Section 21 notices for older tenancies and the issues surrounding this – this is an important reminder.
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 devolution. This is not a definitive interpretation of the law, every case is different and only a court can decide. You are advised to seek professional advice.
For tenancies in England, new rules for assured shorthold tenancies (ASTs) were introduced on 1st October 2015, applying to all those ASTs starting or renewed on or after that date.
On 1st October 2018 these rules (with some minor exceptions) will apply to ALL tenancies, including the older ASTs.
As this date approaches, landlords should be aware that the notice period for the s21 is a minimum of two months, so it is now likely that any section 21 notice served before then would be used in court proceedings after 1st October 2018.
So how will the new rules affect your older tenancies according to Tessa Shepperson?
Unless the tenancies have been renewed every time they expired, or they were given for 3 years initially, they will likely now be periodic tenancies – month to month if rent is paid monthly.
Section 21 Requirements:
These are the things which you MUST have complied with in England and Wales before you can serve a valid section 21 notice:
- The tenancy deposit rules have been fully complied with, and
- If the property is a licensable HMO or is within a selective licencing scheme area, then, failing a temporary exclusion certificate, you will need to produce this license.
The following prescribed legal requirements will also apply where the tenancy (or renewal) started after 1st October 2015:
- Service of the Gas Safety Certificate (served when the tenancy started), and
- Service of the EPC certificate
- Service of the government’s “How to Rent” guide, the issue which was current at the time the tenancy started. See the LandlordZONE® How to Rent Guide archive here – now on the forth issue
- The correct prescribed information was issued and served for the tenancy deposit scheme.
Note: it is important that there is proof that these documents have been served, and the general advice here is to attach all these to the original tenancy agreement and have them signed for at the start of every tenancy.
For older tenancies, where there is no proof that the gas certificate was issued prior to the tenant entering the property, it is importance that the tenancy is not renewed; it should remain periodic maintaining its older tenancy status.
Some of the other documents can be served late, providing they are served before service of a section 21 notice. Again, bear in mind that proof of service is required for this as well.
Tessa Shepperson says:
“Note that the problem with gas safety certificates is hopefully only temporary. It is not what the government intended and so if [a recent case] is not overturned by a later case, I suspect the government will issue new regulations. But it is a problem now. So be careful. Very careful. Note also that there are going to be a further prescribed requirements in due course – for example refunding any illegal tenant fees once the tenant fee bill is law.”
If a tenant has complained about a condition in the property which represents a safety hazard, AND an improvement order is issued by the local authority, then any section 21 notice already served would be invalid, and a valid one could not be served for 6 months after the lifting of the notice.
Out of Time?
The older s21 notices had not time limit and could be served from day one. Now, since 1st October 2015, a valid section 21 notice cannot be served during the first 4 months of the 1st tenancy and it lasts for just 6 months.
For tenancies with rent periods of more than one month, for instance, quarterly rent payments, quite rare these days, proceedings must begin within four months of the notice termination date, otherwise a new notice must be served.
For tenancies commencing prior to 1st October 2015 there were two s21 notices: The Fixed-Term s21(1)(b) and the Periodic notice s21(4)(a). These are now replaced with the s21 6A notice with its prescribed terms for tenancies started after 1st October 2105, and ALL tenancies after 1st October 2018. A full collection of AST notices is available on a government website here
See also: Ending an Assured Shorthold Tenancy©LandlordZONE® – legal content applies primarily to England and is not a definitive statement of the law, always seek professional advice.