The Deregulation Act 2015 introduces some amendments to Section 21 of the Housing Act 1988. Whether the assured shorthold tenancy is for a fixed term, or is a weekly or monthly periodic, you cannot now serve a Section 21 Notice until the tenancy has run for 4 months. This will prevent landlords from serving the S21 Notice at the start of the tenancy (immediately after the signing of the tenancy agreement). If this is your current practice, you will be unable to rely on any Section 21 Notice served at the start of a tenancy. Fortunately, this is not retrospective and will only apply to new tenancies which begin after the Commencement Date which is some months away.
If you have a fixed term tenancy of six months, and want to give notice to coincide with the end of the term of the tenancy, you will only have a window of one day in which to get the notice served. However, if you miss the window, you can serve at any point afterwards provided you give not less than two calendar months’ notice. The notice does not have to expire on a specific date; you just need to give at least two calendar months, which is unchanged.
Requirement for S21 to expire on the last day of a period of tenancy removed (for periodic tenancies)
If the tenancy is a periodic one, the requirement to ensure that the S21 Notice expires on the last day of a period of the tenancy has been removed. It is sufficient to simply give not less than two months’ notice. This will remove the pressure to get that date right, or include the ‘saving provision’ in your S21 Notice.
New Prescribed Form of Notice
There will also be a new prescribed form of S21 Notice which will come into effect on 1 July 2015 – again only for tenancies commencing after that date.
Time limit on issuing proceedings after service of S21 Notice
The new legislation also puts a time limit on the issue of proceedings. Previously, a Section 21 Notice had no expiry date – you could serve notice and then choose not to issue proceedings for months or even years but still rely on the original notice. Under the new legislation you have four months to issue proceedings from the date the notice expires. If you don’t issue proceedings in this window, you will have to serve a fresh notice.
Disrepair Claims and the Deregulation Act 2015
Section 33 relates to retaliatory evictions and the aim is to prevent landlords from using a S21 Notice if a Housing Act 2004 Improvement Notice (in relation to category 1 or 2 hazards), or an Emergency Remedial Action Notice (S40(7) of the HA 2004) has been served. In those cases, a landlord can’t serve a S21 Notice within 6 months of the notice being served. Further, (there are a lot of ifs and buts coming up!) any S21 that is served will be invalid if the tenant has made a written complaint to the landlord or agent about the state of the dwelling house before the notice was served, and if the landlord made no response to that complaint within 14 days, then serves a S21, and if the tenant then complains to the local housing authority, and if the local authority then serves an improvement/emergency notice. However, to protect the landlord, the Act goes on to say:
- A tenant can’t rely on disrepair to prevent reliance on a S21 Notice where he has caused the disrepair;
- A landlord can still serve a S21 Notice irrespective of everything above if the property is genuinely being marketed for sale.
All of the above currently only applies to new tenancies, post commencement of the Act. After 3 years, it will apply to all assured shortholds, whether they pre-date the Act or not.
The Commencement Date for the sections referred to here (aside from the new prescribed form of S21 Notice) is 1 October 2015 and so there is some time yet before you need to worry but we would recommend looking at your policies and procedures now to ensure that everything is in place for later in the year.