A warning from David Smith of Anthony Gold.
Further regulations have been passed making changes to form 6A, the standard form to be used when serving a section 21 notice in England from 1 June 2019. Wales has no prescribed form.
Form 6A is not needed for “old” ASTs that were periodic before the Deregulation Act came into force on 1 October 2015 and which have never been renewed do not actually need to use this form. The overwhelming majority of ASTs will need to use form 6A.
So what are the changes?
The form is very little altered. It has a note to explain to tenants that if an unlawful fee has been taken in breach of the Tenant Fees Act then the notice will not be valid and also has a better explanation of how the notice will be invalid if the landlord has not applied for an HMO or selective license if they require one.
The note here for tenants is actually wrong in that it states that the notice is invalid where the property is unlicensed. This is not actually correct. A notice under s21 can be served as long as a licence has been validly applied for, even if the local authority has not granted the license.
A missed opportunity
It is regrettable that the government did not make any effort to deal with the issue of gas safety certificates and s21.
This issue means that landlords who have mistakenly failed to provide the tenant with a gas safety certificate before they move in to the property are precluded from ever serving an s21 notice and their tenancy is turned into an effective fully assured tenancy.
This is the case even if the property has a gas safety certificate and it is simply provided to the tenant late. This matter will therefore now need to be resolved by the Court of Appeal in the case of Trecarrell House v Rouncefield (on which Anthony Gold are instructed).
When should you use the new notice?
This notice is for use for any notice given after 1 June 2019. It should not be used before that point.
If the wrong notice is used after 1 June then it will be up to the court as to whether it meets the statutory objective. The wrong notice would not have a warning about tenant fees but it would still set out a tenant’s rights and obligations clearly so it is arguably perfectly valid.
However, it would be best not to find oneself in the middle of this argument so getting the right notice would be preferable.
A new How to Rent Guide?
Although it has not been mentioned, the How to Rent guide will also be outdated form 1 June 2019 as it will also need to mention the Tenant Fees Act.
As indeed will the How to Let guide for landlords (although that one is just a guide and has no statutory purpose). Therefore, alongside the various changes brought about by the ban on tenant fees, agents and landlords will need to make sure they have the right document too.
Giles Peaker has an argument on the technicalities of the process that indicates that all S21 notices must now be on form 6A (even for pre-October 2015 tenancies).
I find it compelling.
I have a tenancy which will start on 1 June.
Which ‘How to Rent’ guide should I use – is there a new one about to be published?
Thanks.
They have not published a new one yet. But when it is published it will appear here: https://www.gov.uk/government/publications/how-to-rent
They have published a new one