Landlord & Tenant Update
- AuthorJames Harvey
From 1st October there are a host of changes to the law affecting Assured Shorthold Tenancies (ASTs). This note takes a brief look at the changes and how they impact ASTs and S.21 Notices.
Section 21 Notices
The following must apply before a valid S.21 Notice can be served:
· Deposit protected in a scheme and prescribed information served
This is not a new requirement but is worth remembering. A valid S.21 Notice cannot be served if the landlord/agent had failed to comply with the Tenancy Deposit legislation, namely protecting the deposit in a Government authorised scheme and serving the prescribed information relating to the deposit on the tenant and anyone else that paid the deposit on the tenant’s behalf within 30 days of receipt. A failure to comply gives rise to a claim for compensation by the tenant but also means that a valid Section 21 notice cannot be served unless the deposit is either returned to the person that paid it or is returned less any deductions agreed in writing.
· 4 months since commencement of the tenancy
For any new tenancies after 1st October 2015 it will not be possible to serve a valid S.21 notice within the first 4 months of the tenancy commencing. As the S.21 notice has to give not less than 2 months notice to the tenant to vacate, court proceedings cannot be commenced relying on the S.21 notice until at least 6 months after the commencement of the tenancy agreement.
· Energy Performance Certificate
A valid Energy Performance Certificate must be given to the tenant at the outset of the tenancy and certainly before a valid S.21 Notice can be served. Landlords/agents should keep evidence that this has been served. If given at the outset the tenants can sign a copy of the EPC at the same time that they sign the tenancy agreement, this will be good evidence of service.
· Gas Safety Certificate
It was already a requirement that Gas Safety Certificates must be given to the tenant at the outset of the tenancy and within 28 days of the annual check being carried out. From 1st October 2015 failure to comply will mean that a valid S.21 Notice cannot be served.
· “How to Rent” document served upon tenant
At the outset of every tenancy the landlord/agent must serve on the tenant a document entitled: “How to rent: the checklist for renting in England”. A link to obtain the current version is: https://www.gov.uk/government/publications/how-to-rent
If the document is updated landlords/agents will need to serve the latest version on the tenant at each renewal or when a statutory periodic tenancy arises at the end of the fixed term. If the document has not been served a valid S.21 notice cannot be served on the tenant.
· 6 months elapsed since Local Authority Notice
To prevent retaliatory evictions, it will not be possible to serve a valid S.21 notice for a period of 6 months if an Improvement Notice or an Emergency Remedial Action Notice has been served by the Local Authority.
A new prescribed form of S.21 Notice
For the first time there is now a prescribed form for S.21 Notices. Although this is applicable from 1st October it only has to be used for tenancies commencing on or after 1st October 2015. As a S.21 Notice cannot be served for the first 4 months the form therefore does not have to be used until 1st February 2016. The prescribed form is not required for tenancies which started prior to 1st October 2015 even after 1st February 2016.
Court proceedings must be commenced within 4 months of date required for possession in the S.21 Notice
Previously, once the S.21 notice had been served it would then remain valid indefinitely (unless it was withdrawn, superseded or a new tenancy agreement was entered in to). However, from 1st October 2015 the notice will only remain valid for a period of 6 months from the date it was served. As 2 months notice has to be given this will mean that following the passing of the date specified in the notice landlords will only have 4 months in which to court proceedings before it will be too late. It follows that S.21 notices should only be served if the landlord intends to rely on it.
No further requirement for S.21(4) Notices to expire after the last day of a period of the tenancy
There are two types of S.21 Notice. A notice under S.21(1) (used if served during the fixed term or after the fixed term where a statutory periodic tenancy has arisen) simply required 2 months notice to be given. A notice under S.21(4) (used if the tenancy was on a periodic basis from the outset or if the fixed term had expired and a new contractual periodic tenancy commenced) required not less than 2 months notice with the notice to provide for possession after the last day of a period of the tenancy. From 1st October 2015 there is no longer a need for a notice served under S.21(4) to expire after the last day of a period of the tenancy, it simply requires 2 months notice to be served as with S.21(1), unless the periods of the tenancy are on a quarterly or 6 monthly basis in which case not less than 3 and 6 months notice respectively would be required.
Smoke detectors and carbon monoxide alarms
From 1st October 2015 it is a legal requirement for a smoke detector to be installed on every storey of a property used for living accommodation and for a carbon monoxide detector to be installed in every room used for living accommodation where solid fuel is used. (e.g. coal or wood).
The law applies to existing tenancies as well as new tenancies and all properties should therefore be checked to ensure that they are compliant. The landlord/agent must check the alarms are in working condition on the first day of each new tenancy going forwards and suitable evidence of who checked the alarms must be kept.
A failure to comply could result in a notice being served by the Local Authority which, if ignored, could result in a fine being issued of up to £5000.