What you need to know to avoid an invalid section 21
Article Posted - 1st November 2018
From October, rules set out in the Deregulation Act requiring landlords in England to issue specific documents to tenants come into force for all assured shorthold tenancies, regardless of when they began. If landlords fail to issue these, they won't be able to serve a section 21 no-fault eviction notice should they need to.
From 1 October 2018 all landlords in England with assured shorthold tenancies (ASTs) will need to comply with the requirements of the Deregulation Act 2015.
This includes a Section 21 notice being valid for six months only and protections against ‘retaliatory evictions' where the local authority has issued an improvement or emergency remedial notice. In the latter case, the landlord is not able to issue a valid Section 21 for six months after receiving a notice.
It also protects tenants who have not received an adequate response to a written complaint and then referred this to the local authority – where an improvement or emergency remedial notice is subsequently issued, any Section 21 served after the tenant's initial complaint becomes invalid.
The Act also requires landlords to issue tenants with ‘prescribed information' to be able to serve a Section 21 notice.
The changes were introduced in the Deregulation Act 2015 and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 on 1 October 2015.
From 1 October 2015 the reforms only applied to tenancies in England granted on or after 1 October 2015 (including renewals). From 1 October 2018 the rules will apply to all ASTs in England. However, there may be some ambiguity on prescribed information given the way the legislation was written. It will be up to case law to interpret the regulations. Until this is clearer, our advice to landlords is to assume they need to comply with the requirements of the Act.
Making sure your Section 21 is valid
As part of the new rules, all landlords must use the ‘prescribed form' – Form 6a – when serving a section 21 notice. NLA members can download this from NLA Forms.
To issue a valid Section 21, all landlords with ASTs in England also need to have issued tenants with an energy performance certificate (EPC) and gas safety certificate .
There remains some ambiguity about the inclusion of the How to Rent guide for pre-October 2015 tenancies, since the guide was only produced for the first time in 2015. While the letter of the law does not require How to Rent for pre-October 2015 tenancies, we recommend issuing the guide to all tenants to cover all bases.
You should also make sure that all tenants have been issued with the prescribed information around tenancy deposit protection and that deposits have been protected, as per the previous regulations.
When issuing documents, ask tenants to sign to confirm receipt or to send an acknowledgement email if documents are emailed. This will help if an eviction is challenged and goes to court.The Deregulation Act requires that the EPC, gas safety certificate and How to Rent are issued to the tenant before the tenancy begins. If you realise that you haven't issued these already, we would advise that you do so as soon as possible. You may wish to start a new AST with your tenant in order to regularise the situation. If you have any concerns or queries, NLA members can call our Advice Line to guide you through your options.
HMO licensing update
Another big change taking effect in October is the government's extension of the scope of mandatory HMO licensing in England, which we highlighted in our last newsletter.
From October, the ‘over three storeys' element will be removed so that mandatory licensing covers all properties housing five or more people forming two or more households, with shared basic amenities, whatever its size.
Minimum room sizes for sleeping accommodation are also being introduced. Single rooms for those aged over 10 will need to be a minimum of 6.51 square metres and double rooms 10.22 square metres. The landlord will need to notify the local authority of any room with a floor area of less than 4.64 square metres.
Any area of the room in which the ceiling height is below 1.5 metres cannot be counted towards the minimum room size. This will be a critical issue for landlords of HMOs in England who have converted loft spaces. You can read more about the specific regulations around room sizes here.
Landlords, however, have up to 18 months (depending on their local authority) to adapt any rooms in order to comply with the new rules.
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