To be able to action the accelerated possession procedure in relation to AST agreements made up to September 30, 2015, the Regulations require a minimum standard of proof from landlords that there is a written AST in place, that the deposit is protected and prescribed information relating to the deposit was served on tenants. Licences are also required for HMOs or in Selective Licensing areas.
In order to launch the procedure using the ‘new’ Section 21 notices, however, which are currently intended to be issued for AST agreements made from October 1, 2015 onwards, and won’t apply to older ASTs until late 2018, the Regulations impose several additional obligations on landlords which must be complied with before the eviction notice can be served.
OLD AND NEW NOTICES
Now I am concerned that landlords and agents are serving new Section 21 notices on old AST agreements, putting them at greater risk of having their case thrown out of court.
By failing to recognise the differences between the ‘old’ and ‘new’ Regulations and Section 21 notices, landlords are potentially voluntarily applying many of the new Regulations to their older ASTs; a mistake which, in some cases, could cost a small fortune to put right.
We are encouraging all agents to use the old Section 21 notice where possible before the new rules come into force.
In actual fact, landlords and letting agents should be making the most of this crossover period when they can still serve the old Section 21 notices, as there are numerous reasons why it is beneficial to serve the old forms where applicable rather than the new ones.
Section 21 has until recent years been known as the non-fault notice, with the landlord required to provide only basic information for the older form to be held valid, while tenants have limited grounds on which to dispute a possession claim.
The new Regulations, meanwhile, impose strict obligations on the landlord prior to them serving the latest notice, such as giving the tenant an Energy Performance Certificate (EPC), a Gas Safety Certificate, and the government’s ‘How to Rent: The Checklist for Renting in England’ booklet.
The new Section 21 form also includes information which could be perceived as misleading, given that it doesn’t strictly apply to older tenancies, and could lead to tenants, rightly or wrongly, believing that they have additional rights which don’t actually apply to them. This sort of misunderstanding can then lead to complications in Court, causing even more difficulties for tenants and landlords alike.
In addition, the new notice has a shorter validity period compared to the older form, and can only be relied upon for a limited time after service, meaning that the landlord either has to issue a possession claim within four months of its expiry or serve a new notice.
A failure to adhere to any of these requirements renders a notice invalid, which could see the case being struck out of court, a minimum 12-week delay to the landlord, loss of the court fee of £355, and a possible order to pay the tenant’s legal costs.
The new notice form also provides tenants with details of the grounds for defending a claim on the basis that the eviction was ‘retaliatory’ and came about only because they had raised concerns over repairs that needed undertaking on the property.
If a tenant has reported a repair that needs undertaking to the local authority and an improvement notice has been served, the landlord may be prevented from recovering possession of the property using Section 21 for over six months under the new Regulations.
Service of the new notice where it is not needed, therefore, puts the landlord at unnecessary risk of this defence being successfully raised by the tenant in court.
We are now encouraging all landlords and agents to take advantage of this crossover period to use the old Section 21 notice where circumstances permit before the Regulations come into force across the board.
I would urge landlords and agents to seek advice and to carefully consider how they approach Section 21 Notices if their AST pre-dates October 2015.
The Regulations referred to above are the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.