Legislation that will affect the use of Section 21 – are you ready?

2nd October 2018 posted in Landlords

From increasingly stringent rules around energy efficiency to reductions in tax relief on buy to let mortgages; GDPR regulation to banning orders and the rogue landlord database, 2018 has already been a bit of a bumper year for private rental sector legislation. And with proposed mandatory three-year tenancies, increased regulation of managing agents and mandatory client money protection all in the pipeline, there is more to come.

October 2018 is a particularly busy month for private rental sector legislation coming into force. Yet it is likely that many landlords will not be aware that they are affected or will be affected going forwards. Most importantly, the changes will affect whether or not a landlord can serve a Section 21 notice should they need to regain possession of their property.

Here’s is what you need to know:

From 1st October - The Deregulation Act 2015 is extended to all tenancies (England only)

The Deregulation Act 2015 came into force on 1 October 2015 and included provisions that applied to both landlords and tenants in relation to deposits, retaliatory evictions and section 21 notices for new or renewed tenancies.

What many landlords don’t realise is that, from October 2018 the provisions outlined in the Act will apply to all tenancies, not just new tenancies or renewals.

What this means or you?
•    In relation to retaliatory evictions, landlords will be prevented from serving a Section 21 notice in certain circumstances if the landlord has received notice requiring the landlord to carry out repairs.

•    Landlords will not be able to serve a Section 21 notice in the first four months after the start of an AST. This change will obviously not affect ASTs that were previously exempt as they will have already passed the four-month period. However, a time limit change that will impact older ASTs is that landlords will have only six months from the date the Section 21 notice was given in which to act on it.

•    Until 1st October 2018 a landlord has had the option of using a non-prescribed form of notice if the AST was granted before 1 October 2015. From 1st October 2018, landlords must use the prescribed Form 6A for all ASTs, no matter when they were granted.

•    The change that will have the most impact on landlords and managing agents is that they will have to give tenants prescribed information on the condition of the property for all ASTs. This may require landlords to carry out surveys in between tenancies. Most importantly, landlords will not be able to serve a Section 21 notice on tenancies unless they have provided tenants with the following information at the start of the tenancy and before the tenant moves into the property:

1.    The property’s Energy Performance Certificates (EPC), except where a property is not required to have an EPC such as where the landlord is letting a room on a single AST in a House in Multiple Occupation (HMO).

2.    A gas safety certificate covering all fixed as well as portable gas appliances provided by the landlord for the tenants’ use

3.    The Ministry of Housing, Communities & Local Government’s (MHCLG) How to rent guide: This can be provided digitally or as a hard copy if the tenant requests it.Up until October 2018, a landlord wishing to issue a Section 21 notice could serve all the correct documents one day and issue the Section 21 notice a few days later. The key change coming into force in October 2018 is that these documents must be provided at the start of the tenancy, before the tenant has moved in.

Paul Shamplina advises that, in a case where the gas safety certificate, EPC and ‘How to rent’ guide were not served at the start of the current tenancy and a replacement tenancy is being contemplated, ensure that the latest documents are served before the replacement tenancy begins. He also suggests keeping a detailed record of the date and time of issue of the documents, signed and acknowledged to confirm the time and date. This can then be used as evidence in any subsequent possession action.

Landlord Action is the recommended legal firm on tenancy disputes for the Hunters Network.

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