03 October, 2018
Landlords will be aware of the provisions of the Deregulation Act 2015 which changed the operation of section 21 notices in Assured Shorthold Tenancies (ASTs). Currently, the provisions only apply to ASTs granted or renewed from 1 October 2015, when the Act came into force.
However, section 41(3) of the Act provides that from 1 October 2018, the provisions will apply to all ASTs. This includes tenancies granted prior to 1 October 2015. So what does this mean for Registered Providers with tenancies pre-dating the Act?
We will consider each of the changes brought in by the Act relevant to Registered Providers and whether they will apply to all ASTs from October.
New prescribed form
Prior to the Act, there was no prescribed form section 21 notice. The only requirement was that it was to be in writing. The Act introduced Form 6A which is required to be served on tenants whose tenancy started post 1 October 2015. However, from October 2018, Form 6A should be used for all section 21 notices, regardless of when the tenancy was granted.
The Act brought in the following time restrictions:
Of course, the first restriction is not relevant to tenancies pre dating October 2015 as we are long past the initial 4 month period.
It appears however that the 6 month issue rule will apply to all ASTs come October. If so, even notices served pre 1 October 2018 would be subject to the restriction. The safest position is to assume the rule applies and ensure landlords act promptly in issuing proceedings. The danger is that the notice will expire and a new notice will require serving.
Prescribed requirements - Gas Safety Certificate and EPC
For post 1 October 2015 tenancies, no section 21 notice can be served unless the tenant has been provided with a gas safety certificate and EPC.
The case of Caridon Property Ltd v Monty Shooltz was heard by the County Court in February 2018. The Court held that it was not sufficient for landlords to provide tenants with a gas safety certificate before serving section 21 notice. Rather, they are required to provide the gas safety certificate prior to commencement of the tenancy and any such breach cannot be rectified.
Sections 38 and 39 of the Act (prescribed information and prescribed legal requirements) state that any prescribed legal requirements made by regulations will apply to all ASTs from 1 October 2018. However, the only regulations are The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 and these only apply to tenancies starting on or after 1 October 2015.
Therefore, until such time that new regulations are introduced, the requirement to have provided a gas safety certificate and EPC before a section 21 notice can be served will not apply to pre 1 October 2015 tenancies.
One issue which may arise however is that paragraphs 9 and 10 of the Accelerated Possession Claim Form ask whether the tenant has been given a copy of the EPC and gas safety certificate - if any such cases were taken to Court then it would be advisable to include a note in the covering letter or in the papers to explain that the 2015 regulations don't apply.
For more information contact Emily Jordan in our Housing & Regeneration department via email or phone on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.