The Section 21 Notice has, historically, enabled landlords to recover possession of property where the fixed term of the tenancy has come to an end and without having to justify recovery on a specified ground. Legislative changes in recent years have restricted the landlord’s ability to recover possession where a landlord has failed to protect a tenant deposit in an approved scheme and where prescribed information about the tenant deposit has not been served. Legislative changes coming in to force from 1 October 2015 further restrict the landlord’s ability to recover possession for failure to comply with prescribed requirements and in retaliation to a tenant complaint.
The new ‘Prescribed Requirements’ Regulations stipulate that a landlord cannot serve a section 21 notice when it has not done the following:
- Provided 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
- Provided the tenant with a gas safety certificate, in accordance with regulation 36 of the Gas Safety (Installation and Use) Regulations 1998
- supplied the tenant with a copy of DCLG: How to rent: The checklist for renting in England
Landlords have long been required to comply with gas regulations and the competent landlord should not face any ‘real’ if they have complied with previous requirements in respect of the gas safety certificate.
The Landlord’s ability to serve a section 21 Notice at the start of an AST is limited to ensure that tenants are actually given 2 months notice before the tenancy comes to an end.
Tenants are also given a statutory right to claim back rent paid in advance in respect of a period falling after the section 21 Notice concludes the tenancy.
The new Section 21 Notice will not need to specify the date of the last day of a period of the tenancy as the date on which the tenancy comes to an end.
The requirements to protect the tenant’s deposit in a Tenancy Deposit Scheme and to serve the prescribed information on the tenant remain in place.
The legislative amendments also restrict the Landlord’s ability to rely on a notice ending an assured shorthold tenancy under section 21 of the Housing Act 1988 if a tenant:
- Has made a written complaint to its landlord regarding the condition of the premises or common parts before a section 21 notice is given; and
- The landlord has not responded, or its response is inadequate, or it then serves a section 21 notice.
There are plenty of rogue landlords who let dilapidated properties and the legislation is no doubt targeted at those landlords. However there are also plenty of nuisance tenants who may try to take advantage of the enhanced requirements. There have been a multitude of issues arising out of protection of deposits. There will, no doubt, be many issues arising out of the new requirements and most likely on the issue of ‘retaliatory’ action. Landlords may see an influx of faux complaints from tenants as a means of lengthening their occupation of the property. Landlords (or their managing agents) will have to respond to the complaint which may serve only to increase managing agent’s costs. Savvy Landlords may try to offset any anticipated costs by increasing rent.
The aim of the new requirements is likely to be to afford more protection to tenants and to improve living conditions generally. However it remains to be seen whether this will lead to increased rent prices in an already expensive rental market and an increase in possession claims coming before the Court.
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