On 1 October 2015, provisions of the Deregulation Act 2015 (DA) protecting tenants from retaliatory evictions will come into force in England. From this date, a landlord will not be able to serve a Section 21 notice under the Housing Act 1988 (HA) to obtain possession of a dwelling house in cases where the tenant has complained about the condition of the premises or the common parts and the landlord either:
- did not respond within 14 days;
- provided an inadequate response; or
- responded by serving a Section 21 notice.
There are various circumstances in which a landlord's ability to serve a Section 21 notice will not be fettered. For example:
- if the tenant is responsible for the condition of the dwelling house;
- if, at the time of service of the Section 21 notice, the house is genuinely on the market for sale; or
- if the landlord is a private registered provider of social housing.
Additionally, where the dwelling house is subject to a mortgage which was granted before the beginning of the tenancy, the mortgagee is entitled to exercise a power of sale under the mortgage or under section 101 of the Law of Property Act 1925 (LPA 1925) if it requires possession for the purposes of disposing of the dwelling house with vacant possession in exercise of that power. The term "mortgagee" includes a receiver appointed by the mortgagee under the terms of the mortgage or in accordance with the LPA 1925.
Various "tidying up" provisions and a prescribed form in relation to Section 21 notices will also come into force on 1 October. Again, these only apply to England.
- The Assured Shorthold Notices and Prescribed Requirement (England) (Amendment) Regulations 2015 (the Regulations) provide a prescribed from of Section 21 notice (form 6A) which will be required to be served from this date where possession is sought under either Section 21(1) or 21(4) of the HA.
- The further restrictions imposed on serving a Section 21 notice include that a Section 21 notice can not be used where the tenant has resided in the property for less than four months.
- There will be no requirement for the date specified in the Section 21 notice to be the last day of a period of the tenancy.
- There will be a statutory right for the tenant to claim back rent paid in advance where a Section 21 notice brings the tenancy to an end before the end of a payment period. This will be calculated on a daily basis.
- A Section 21 notice can not be served where the landlord has not complied with certain prescribed requirements which relate to the landlord providing the tenant with an energy performance certificate, free of charge, in accordance with Section 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012 and providing the tenant with a copy of a gas safety certificate, in accordance with regulation 36 of the Gas Safety (Installation and Use) Regulations 1998.
- In addition to the provision of a energy performance certificate and gas safety certificate, the landlord must also supply the tenant with a copy of the booklet 'DCLG: How to rent: The checklist for renting in England.' Landlords are not required to supply a further copy of the booklet each time a different version is published during a tenancy.
- The requirement to provide a copy of the booklet does not apply where; a landlord is a registered provider of social housing; or the landlord provided the tenant with the booklet under an earlier tenancy and that version is the latest version.
Key points for landlords
- The provisions state that the tenant's complaint about the condition of the premises or the common parts must be in writing. However, they will still apply if the tenant did not know the landlord's email or postal address, or the tenant made reasonable efforts to contact the landlord to make the complaint, but was unable to do so. Landlords should ensure that tenants have adequate means of contacting them.
- Landlords have 14 days in which to respond to the tenant's complaint. Landlords should ensure that they respond to all complaints from tenants swiftly.
- These new provisions will apply to Assured Shorthold Tenancies granted on or after 1 October 2015. Any fixed term AST granted prior to that date, which becomes a statutory periodic tenancy on or after 1 October 2015, will not be caught. However, from 1 October 2018 these provisions will apply to all ASTs in existence at that date.
- Before serving a Section 21 notice, ensure that there has been compliance with the Regulations in terms of the provision of energy performance certificates, gas safety certificates and booklet 'DCLG: How to rent: The checklist for renting in England.' The Regulations provide that the booklet can be provided in hard copy or if an email address has been provided to the landlord by the tenant, by email. Landlords need to ensure that they comply with these Regulations and retain copies of the documents and correspondence provided to the tenant.
- Before serving a Section 21 notice, consider why it is being served. If the intention is to recover possession so that a lender can exercise its power of sale, this strategy should be confirmed in writing before the service of the Section 21 notice.
From 1 October 2015, landlords in England will also be under additional obligations in relation to smoke and carbon monoxide alarms. Under The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 landlords will be obliged to ensure that at least one smoke alarm is installed on every storey of their rented property, and that a carbon monoxide alarm is also installed in any room which contains a solid fuel burning appliance. Landlords will have to ensure that such alarms are in proper working order at the start of each new tenancy. Local authorities will enforce the Regulations and will be able to issue penalties of up to £5,000 for non-compliance.
This is an ever changing area of law, with increased focus from the government on the regulation of the private rental sector. We anticipate that further regulations will follow and landlords must ensure that they are aware of their obligations and how to comply.
Contributor: Alexandra Holsgrove Jones
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2015. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com
by Katie Evens