The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646) (Regulations) – A new checklist for landlords
Landlords wishing to regain possession of premises let out on assured shorthold tenancies (ASTs) should be aware of the changes made to the manner and timing of the service of notices to quit under s.21 of Housing Act 1998. The frequent practice of serving a protective s.21 notice at the beginning of an AST, to avoid delay in removing a tenant, will no longer be possible for those ASTs affected.
The Regulations apply to all fixed term ASTS granted after 1 October 2015, but will not apply to any statutory periodic tenancies arising out of tenancies granted before that date until 1 October 2018, when all ASTS must comply with the Regulations. The s.21 notice must now be in a prescribed form.
Landlords must have produced the following documentation to their tenants to be eligible to serve the s.21 notice:
Energy Performance Certificate – It is already mandatory under the Energy Performance of Buildings (England and Wales) Regulations 2012 (2013/3118) for the landlord to produce this to a prospective tenant.
Gas Safety Certificate – It is already mandatory for landlords to have gas appliances checked on an annual basis under Gas Safety (Installation and Use) Regulations 1998 (SI 1998/2451).
The Booklet published by Department for Communities and Local Government entitled “ How to rent: the checklist for renting in England” – This is a new requirement and can be provided as a hard copy or by email to the tenant if he/she has confirmed they will accept documents served by this method.
In addition to the documentation to be provided, the Landlord is prevented from serving the s.21 notice in the following circumstances:
(i) The tenant has resided in the property for less than four months. There is no longer a requirement for the notice to expire on the last day of a period of the tenancy, but the minimum period of notice of two months remains.
It may be very difficult now for a landlord to serve an effective notice if it wishes a six month term tenancy to expire on the last day when it has to wait four months. The likelihood is that such tenancies would have to be determined a few days after the last day. Will tenants who are leaving anyway pay the additional days’ rent? If there is no deposit the landlord may simply have to accept the loss.
(ii) When the notice is served as a retaliatory eviction.
The landlord cannot serve the notice after it has received a written complaint about the condition of the property from the tenant and either has failed to respond to the complaint within 14 days of receipt or the response is inadequate. An adequate response is defined as one which provides a reasonable timescale for the remedial action to be taken and a description of it. The tenant can follow this up with the local authority which would be able to serve an enforcement notice on the landlord if the condition of the premises justified it.
(iii) The landlord has not protected the tenant’s deposit under one of the Government approved Tenancy Deposit schemes
(iv) The property requires a licence but is unlicensed – this would cover properties in multiple occupation or all residential lettings in those local authorities which have extended the licensing scheme.
The restrictions relating to service of a s.21 notice as a retaliatory eviction will not apply where:
- the tenant is in breach of its duty to use the premises in a tenant-like manner (or an express provision in the tenancy to the same effect) – i.e. taking care of the premises by carrying out the sort of minor maintenance and precautionary measures expected of a reasonable tenant.
- the premises are genuinely on the market for sale – if the landlord is intending to sell the premises to a party connected to the landlord this would not constitute genuine marketing.
- the landlord is a private registered provider of social housing; or
- the premises were charged before the grant of the tenancy and the mortgagee wishes to exercise its power of sale and requires vacant possession. This exclusion will be welcomed by lenders who might otherwise have had to wait for the local authority to inspect the premises and determine whether or not an enforcement notice should be served. In addition if a notice was served by the local authority or it had to carry out emergency remedial works a s.21 notice could not be served for a further six months. The documentary requirements would still apply so lenders must ensure the production of these items.
Landlords or their agents need to review their letting portfolios to ensure they have all the requisite documentation in place. It is however the potential for some tenants to abuse their new rights by claiming a retaliatory eviction and delaying repossession which is likely to be of greatest concern.