From today the new section 21 rules apply to old ASTs too

You may remember that on 1 October 2015, new rules regarding the use of section 21 came into force for assured shorthold tenancies which started or were renewed on or after that date.

From today, in England (the changes do not affect properties in Wales) those rules (or most of them) apply to ALL ASTs.

Let’s have a quick look at them. But first

What is section 21?

There are as many section 21s as there are acts of Parliament which have 21 or more sections. However, in a housing law context, section 21 is section 21 of the Housing Act 1988.

This is the section which provides that so long as a landlord complies with the rules, he can obtain a possession order in court even if the tenant has done nothing wrong.

These are the rules which already existed:

• The tenancy must be an assured shorthold tenancy
• The landlord must serve a notice first (known as a section 21 notice)
• For the notice to be valid, the landlord must be compliant with the tenancy deposit rules (if he has taken a deposit) and
• Obtained an HMO license (if the property is subject to licensing)
• The landlord must also give the correct notice period – which cannot be less than two months from the date of service of the notice, and
• The proceedings cannot start until after the end of the fixed term (although you can serve the notice during the fixed term)

The good news

The rule which said that for some notices you have to give a date which is the last day of a period of the tenancy has now gone. You just need to give two months notice (or whatever notice period is applicable for your tenancy).

We have a prescribed form. It is called Form 6a and must be used now for all ASTs.

I say this is good news as having a prescribed form generally means that fewer mistakes are made. Provided you use the form of course.

The new section 21 pre-requisites

These are as follows:

• You must have served the government’s ‘How to Rent’ booklet – which can be found online here.
• You must have served a gas safety certificate on the tenants before they moved in and
• An energy performance certificate

Although it looks as if the last two only apply to post 30 September 2015 tenancies. There is a particular problem about the Gas Safety Certificates which you can read about here.

The anti-retaliatory eviction rules

These say (more or less) that you can’t serve a section 21 notice within six months after service of the following by your Local Authority:

(a) a notice served under section 11 of the Housing Act 2004 (improvement notices relating to category 1 hazards),
(b) a notice served under section 12 of that Act (improvement notices relating to category 2 hazards), or
(c) a notice served under section 40(7) of that Act (emergency remedial action);

If you have already served a section 21 notice and it was served after your tenants complained about something referred to in the Local Authority notice – your section 21 notice will be retrospectively invalidated.  Unless you have already obtained your possession order.

For most landlords, the anti-retaliatory rules will not be a problem as Local Authority Environmental Health Officers (EHOs)are not going to serve an improvement notice unless there is a serious problem.  In most cases even then they won’t serve a notice until they have tried to resolve matters amicably with you first.

So if you are contacted by a Local Authority EHO about a problem with your property – try to deal with it promptly.

The time limits

You can’t serve a section 21 notice during the initial first four months of a tenancy (or rather you can but it won’t be valid).  As a section 21 notice must give a notice period of at least two months, this means that even if you have a very short tenancy you can’t use section 21 to evict the tenant until after the first six months.

We also now have ‘use it or lose it’ rules:

• In most cases, you can’t issue proceedings based on a section 21 notice which was served more than six months ago.
• If the notice is one which has a notice period of more than two months, then you can’t issue proceedings after four months from the date given in the notice.

Summing up

Most landlords will (or should) be aware of these rules and be applying them.  They have been around for the past three years after all.

They may be a problem though for landlords with only one or a few properties where they have had the same tenants for over three years.  In particular – that section 21 notice you served at the start of the tenancy is no longer valid.

If you can’t remember whether you served you gas safety certificate – that’s not a problem as those rules do not apply to you.  Unless you give the tenants a new tenancy agreement or renewal form.

So in view of the problem discussed here, I suggest that if you can’t prove service of your gas safety certificate you allow the tenancy to run on as a periodic.  As otherwise, you may find that you are stuck with your tenants forever.