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New prescribed form of Section 21 Notice

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In a previous article we reported on the changes to the regime for ending an assured shorthold tenancy as introduced by the Deregulation Bill, which received Royal Assent on 26 March 2015 and so is now the Deregulation Act 2015.

As reported at the time, certain provisions of the Deregulation Act 2015 relate specifically to a landlord’s ability to serve a Section 21 Notice. Compliance with the new requirements will be essential for any landlord who wishes to use the Section 21 notice procedure to terminate an assured shorthold tenancy that has been entered into or renewed after 1 October 2015.

One of the changes brought about by the Deregulation Act 2015 was the introduction of a new prescribed form of Section 21 Notice. This new form of notice was laid before Parliament on 9 September 2015 under The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015 No. 1646) and will come into effect as of 1 October 2015. The new Section 21 Notice (referred to in the Regulations as Form No. 6A) must be used in respect of all tenancies which are new or are renewed after 1 October 2015 but it does not apply to periodic tenancies created after 1 October 2015 and which follow on from tenancies which commenced before this date.

The template for the new Section 21 Notice can be found in the Schedule to the Regulations. Helpfully, the new Form 6A outlines by way of general guidance the circumstances in which it should not be used. This serves both as an important health warning and a useful reminder to landlords and their agents who shall need to ensure that the requirements of the Deregulation Act 2015 are met, as well as making sure that the correct form is used.

However, there are still some potential pitfalls when completing the new form.  The prescribed form requires the landlord to insert a date after which the tenant is required to leave the property. As a footnote to the new form, guidance is provided which is intended to help landlords provide the correct date, allowing time for service of the Section 21 notice. However, this advisory provision could well lead to some confusion in its interpretation.

Landlords are advised that they should insert a calendar date which allows for the service period. There is no definition of what the appropriate “service period” should be, other than a statement that if the notice is served by post (the example of first class post is given) then two days should be allowed for service. However, this method of calculating the termination date may not correspond with the notice or termination provisions of the specific tenancy agreement or any deeming provisions which may have been provided for within that agreement. It is also not clear whether an additional allowance would need to be made for public holidays or weekends. In all cases it would be sensible to err on the side of caution by giving more notice than the bare minimum to avoid any risk of invalidating the process.  Evidence of actual service of the Notice and details of the method used should also be retained.

As explained above, it is important to keep in mind that the validity of a Section 21 Notice after 1 October 2015 will be dependent at all times on compliance in full with the requirements of the Deregulation Act 2015. Any Landlord seeking to rely on the section 21 procedure must therefore ensure compliance with the requirements of the Regulations, adequate protection of the tenants’ deposit through use of a Deposit Protection Scheme and ensure that the property is licenced for rental purposes, where a licence is required. It is worth noting that the Regulations have now introduced additional legal requirements to those stipulated in the Deregulation Act 2015. In summary, the Regulations now require all Landlords to provide their tenants with the following:

  • A valid EPC
  • A current gas safety certificate
  • A copy of the Government’s publication entitled “How to rent: the checklist for renting in England”

A valid section 21 notice cannot be served at any time when the above requirements have not been fulfilled.

Given that the above procedures shall come into effect as of 1 October 2015, there is not much time for landlords and managing agents to familiarise themselves with the new form and the requirements for compliance. By introducing a new form of Section 21 Notice, the Government’s intention was to simplify the notice procedure for landlords and avoid the increased costs and delays in recovering possession associated with invalid notices. Time will tell whether this, in reality, proves to be the case.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.  If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.