A series of articles looking at the new rules regarding section 21 notices – applicable in England only – for tenancies created after 1 October 2015.
One of the good things to come out of the changes coming into for in England tomorrow (1 October 2015) is that there is now a prescribed form of section 21.
It has been noticeable over the past 25 years or so that there have been far more problems, and far more challenges in the courts to section 21 notices than there have been to section 8 notices where there is a prescribed form.
This is because we all had to make up the section 21 form, and often people got it wrong.
However, from 1 February 2016 (in most cases) this will not be a problem. You will use the form in the regulations here.
The new prescribed form
For completely new tenancies created on or after 1 October 2015 there is a prohibition on serving a section 21 notice during the first four months of the tenancy. So you will not be able to use it until 1 February.
Although it will need to be used for new replacement tenancies served on or after that date as they do not have the four month prohibition.
The regulations do say that you can use the new form for earlier tenancies. But I would not recommend it.
The form lists at the top, all the various hoops (discussed in earlier posts on this blog) that landlords will have to jump through before the notice can be validly served. As these will not apply to pre 1 October 2015 tenancies it will only confuse your tenants if you use a form which talks about them.
So that gives us all a bit of time to get it up on our systems.
As you will probably notice if you click through to the regs – they are amended. The original form drafted had an error in it.
Intensive scrutiny of the form by the nation picked this up though and the DCLG drafting team have managed to get a new form out just in time. So:
- Don’t use the form attached to the original regulations (as its wrong), and
- Don’t use the amended form for pre 1 October 2015 tenancies unless it is a renewal.
Section 21(4) notices simplified
We also have a welcome simplification to section 21 notices, added by the new section 21(4ZA)
In the case of a dwelling-house in England, subsection (4)(a) above has effect with the omission of the requirement for the date specified in the notice to be the last day of a period of the tenancy.
I think we will all be very glad to see the back of that!
An alternative notice
If you have lived in the property yourself before letting it, or will be wanting the property back to live in yourself later (or for your spouse or civil partner), you will probably be better off using ground 1 of the Housing Act Schedule 2 as a ground for possession.
There are far fewer complications.
So make sure you add a ground 1 notice to your tenancy agreements from now on.
The govt has just released the “new”, “new” prescribed form – this is an amended form to correct the form issued a few weeks ago-that contained an error!
If perchance any landlord has downloaded the previous form it will be the incorrect form.
Yes, its the amended new form which we link to in the post. http://www.legislation.gov.uk/uksi/2015/1725/made
Unbelievable that the regulations are being amended before they come into force but this is the world we live in …
It is also baffling that the wording of the guidance regarding periodic tenancies was changed to state that the notice period may depend on how often rent is paid, when it depends on the periods of the tenancy (as the original version stated!).
For requirement (e) where a property requires a licence but is unlicensed, does this just apply to HMO’s or does it also include properties within selective licensing schemes?
It is simply ‘requires a licence’ and in the absence of any contrary definition will include all properties that require licences of any kind under the Housing Act 2004
The removal of the requirement for a section 21 notice served on a periodic tenant to expire on the last day of a period of the tenancy only applies to ASTs granted on or after 1 October 2015 (see sections 35 & 40 Deregulation Act). Unfortunately, life has not got simpler for landlords of existing periodic tenants.
My understanding is that for statutory periodic tenancies Spencer-v-Taylor still does provide for this.
Also maybe Tessa can clarify ….but does a contractual periodic tenancy not become ‘new’ every month too, so the DRA 2015 does apply?
Spencer v. Taylor will apply to statutory periodic tenancies. It now has Supreme Court status as leave to appeal to the Court of Appeal was refused.
My understanding is that contractual periodics are treated as being an extension of the original fixed term and do not become ‘new’ every month as you suggest.
Thats my view anyway.
Does this mean that all tenancies which became periodic (after the end of a written fixed term AST) BEFORE and AFTER 01st October 2015 the new rules don’t apply?
Meaning only totally new tenancies which commenced on or after 1st October 2015 are relevant?
My understanding is that it is only
(1) totally new tenancies and
(2) renewal tenancies (ie where the fixed term has been renewed by a renewal or memorandum – ie they have a new fixed term)
which started after 1 October 2015, that the regs apply to.
But not periodic tenancies following on from a tenancy which started before 1 October 2015.
It is confusing I agree.
Hopefully a few cases end up being appealed in court and we have something to go on.
…. thanks for your reply to my comment.
I’m just wondering what peoples take is on re-serving the section 21 notice, i.e. prior to 1st October we served a section 21 notice which was valid indefinitely. If I serve one now after 4 months of my fixed term, but this is only valid 6 months from service, can I serve a further one 4 months later or will this invalidate the first – I can see nothing in the regs to say it will.
If as a landlord my tenant is fine right up until the point my section 21 expires, then I have reason to regain possession, I will have to wait 2 months, then wait for the court to give possession and a bailiff date which potentially means I am looking at 2-3 months – by which time my tenant is 4-5 months in arrears – no longer an accelerated possession?
Anyone thought about this at all?
@George Section 21 notices are not valid indefinitely. They are valid during the currency of that tenancy (and any subsequent periodics).
So if you give the tenant a new fixed term – whether by way of a new tenancy agreement or a renewal form / memorandum – that will end any section 21 notices served previously.
Following on from the above, on previous notices we have saving had clauses .. how do you think adding another page to the notice would take affect? Maybe something like:
——-
If this notice would otherwise be ineffective, possession is required no sooner than the earliest day on which the tenancy could ordinarily be brought to an end by a notice to quit by the landlord.
The date possession is required is:
a. No sooner than the initial six months of the initial
tenancy commencing, and;
b. (if your tenancy is still in the fixed term or is periodic following on from a fixed term) the first date which is after two months after this notice is served upon you.
c. (if your tenancy started on a periodic basis without any initial fixed term, which is quarterly) the first date which is after three months after this notice is served upon you.
d. (if your tenancy started on a periodic basis without any initial fixed term, which is half yearly (6 monthly) or annual (12 monthly)) the first date which is after six months after this notice is served upon you.
——-
What do you think?? Could we still have the best of both worlds??