Changes in law give tenants additional rights

1st October 2015 was an important day for the private rented sector as it marked a change in the way that assured shorthold tenancies can be brought to an end using the s.21 notice procedure. The aim of this article is to discuss those changes.

Firstly, there is a new prescribed s.21 notice form (which can be found in The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015.

Secondly, there are new restrictions on the timing of service of s.21 notices:

• A notice cannot now be served in the first 4 months of a tenancy. This applies to new tenancies and not to replacement tenancies or statutory periodic (i.e “roll-over”) tenancies. So the common practice of a notice being served at the same time that a tenancy is agreed would now make such a notice invalid.
• Where 2 months notice is given, a possession claim cannot be started more than 6 months from the date that that notice was served. This means that possession claims must be started promptly where a s.21 notice has been given.
• No s.21 notice can be served in the absence of a current Energy Performance or Gas Safety Certificate.
• No s.21 notice can be served where the tenant has not been given prescribed information (in the form of the CLG booklet-How to Rent: the checklist for renting in England).

Thirdly, s.33 and s.34 of the Deregulation Act place restrictions on service of a s.21 notice in cases of ‘retaliatory eviction’. This process takes in a number of steps:

• the tenant complains to a landlord (or their agent) in writing about the condition of the property
• the landlord fails to resolve the complaint within a reasonable time/fails to provide an adequate response/serves a s.21 notice
• the tenant complains to the council, who issue an improvement/remedial notice on the landlord
• once the improvement/remedial notice is served, any s.21 notice served after the tenant’s written complaint and within 6 months of the council’s notice (even if possession proceedings have been issued, but before a possession order is made) is invalid

There are exceptions where the defect has been caused by irresponsible behaviour by the tenant or where the property is up for sale. Also, the rules do not apply to housing associations. In any event, the restrictions depend on the service of a notice on the landlord by the Environmental Health department.

In summary, these changes provide a number of pitfalls and challenges to landlords wishing to recover possession of their properties. They also add to the existing responsibility to register tenancy deposits and are likely to generate more defences to possession claims. Note, however, that this new law does not affect proceedings brought for breach of the tenancy agreement.

If you are in any doubt about your rights or obligations under the new rules, or you require assistance with a connected legal matter, call us on 020 7426 0400.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.