Take Notice (of Possession): All Change
Renting is big business. With the percentage of private renters in England increasing year on year, it is little wonder that the government is enacting various reforms across the rental sector to further its ‘aspiration’ of ‘a bigger, better private rented sector.’[i] This is making it more difficult than ever for both landlords and tenants to keep abreast of all the relevant regulations and legal formalities that govern even straight forward Assured Shorthold Tenancies. One of the most common issues encountered in residential possession proceedings is the contested validity of notices to quit. A section 21 notice is supposed to be a simple tool enabling a landlord to alert a tenant in advance of the termination of their tenancy leading to its repossession. Unlike a section 8 notice it allows the landlord to repossess their property as of right, and does not require grounds for possession. However, it is highly likely that 2016 is about to see a substantial increase in the number of contested court proceedings relating to the validity of s.21 notices due to changes to their prescribed form.
The typically excitingly named, Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 were laid before parliament on 9th September 2015 and came into force 1st October 2015. Following hot on the heels of a raft of other reforms such as ‘right to rent’ immigration checks and the regulation of Smoke and Carbon Monoxide Alarms (yes really), the changes to s.21 notices are possibly the most far-reaching of all. It is crucial to point out that these reforms only apply to tenancies starting on or after 1st October 2015 and that the previous rules apply to older tenancies and periodic tenancies that ‘roll over’ into this period. The explanatory memorandum to the regulations is well worth reading[ii].
As well as new requirements for information that has to be provided at the start of the tenancy set out in reg. 3, reg. 4 mandates a new form of notice, the ‘Form No. 6A Notice Seeking Possession’ that can be found in the Schedule. This template is now mandatory to use. It replaces the older s.21(1)(b) and s.21(4)(a) notices formerly used for fixed term/periodic tenancies respectively. The crucial differences inaugurated with this new form (in conjunction with the Deregulation Act 2015) are as follows;
- A s. 21 notice cannot be served within the first 4 months of a fixed term tenancy, preventing the hitherto common practice of serving notice at the same time as the tenancy. This is why the new form can only be served from 1 February 2016 at the earliest (for tenancies that were commenced or renewed in writing on 1st October 2015).
- There is still a minimum requirement of two months’ notice, but there is no longer any need for it to end the notice on a period of a tenancy. This is a sensible simplification.
- Notice for fixed term tenancies will only be valid for 6 months from the date of issue. Notices essentially now come with a ‘use-by’ date, so the mantra is ‘use it or lose it’.
- Notice for rolling or periodic tenancies will similarly only be valid for 4 months from the date of issue.
- Notice cannot be given in at a time when the landlord is in breach of a ‘prescribed requirement’; either the requirement to provide a free energy performance certificate (EPC) to a tenant and/or the requirement to provide a tenant with a free gas safety record.
- The notice will be invalid where (i) the tenant made a complaint in writing to the landlord regarding the condition of the property before the notice, (ii) the landlord did not provide a response to the complaint within 14 days/gave an inadequate response, and (iii) the tenant has consequently made a complaint to the local authority who have subsequently served a ‘relevant notice’. This is in order to prevent so-called ‘retaliatory evictions’ and is sure to mark a new area for disputed possessions due to the complexity of the provisions.
These crucial changes are going to affect tenants and landlords alike. There are clearly many new complications that can now arise, in which case Chambers’ experienced Land and Property Team are at hand to assist.
[i] Housing Minister Brandon Lewis, https://www.gov.uk/government/news/new-measures-help-create-a-bigger-better-private-rented-sector