/Tips for the Unwary Residential Landlord

Tips for the Unwary Residential Landlord

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The Deregulation Act 2015 (DA 2015) introduced new rules in relation to the way in which assured shorthold tenancies (ASTs) of residential properties in England can be terminated and which restrict the landlord’s ability to serve a section 21 notice. (Note that the DA 2015 does not affect properties in Wales.) These provisions apply to all ASTs granted on or after 1 October 2015.

The DA 2015 changes do not currently apply to ASTs granted before 1 October 2015, even if they become a statutory periodic tenancy after 1 October 2015.

However, from 1 October 2018, the rules will apply to any AST, whenever the AST was granted.

These changes relate to a number of key areas, including the following:

  • the introduction of a prescribed form of section 21 notice
  • the removal of the need for the landlord to specify the last day of a period of the tenancy as the date on which the tenancy comes to an end in a section 21(4) notice
  • a section 21 notice to determine a contractual fixed term tenancy may not be given within the first four months of the tenancy. Possession proceedings must be commenced within the period of six months from when the section 21 notice was given unless more than two months’ notice is required by the tenancy to be given, in which case proceedings must be commenced within the period of four months from that date
  • protection for tenants from retaliatory eviction where they have raised a legitimate complaint about the condition of the property. If the tenant notifies the landlord of a complaint, the landlord has time to respond and address this. The tenant can then refer the matter to the local housing authority (LHA) who may serve a notice on the landlord in relation to certain health and safety issues to be remedied. The service of a LHA notice would then invalidate any section 21 notice which the landlord had served after having received the complaint from the tenant. There are some limited exceptions to this, for instance where the property is for sale, the landlord is a housing association or there is a mortgagee exercising a power of sale

Significantly a section 21 notice cannot be served unless the landlord has complied with certain legal obligations. Those obligations are:

(i) providing the prospective tenant with a copy of a current gas safety certificate before the tenancy is granted

(ii) providing the prospective tenant with a copy of a valid energy performance certificate (EPC) before the tenancy is granted

(iii) providing the tenant with the Government’s “How to Rent” booklet. The landlord will only be able to serve a section 21 notice when this requirement has been complied with. (It should be noted that there have been five editions of that booklet. The most recent edition should be supplied at the outset of the tenancy. If a landlord is complying with this requirement retrospectively, it would be prudent to supply the tenant with the edition in force when the tenancy was granted together with a copy of the most recent edition, as it is unclear which edition would be the correct one for those purposes.)

In a recent case in the Central London County Court[1] it was held that because a landlord had failed to give his tenant a gas safety certificate before he had gone into occupation of the property, in breach of regulation 36(6)(b) of the Gas Safety Regulations, he was unable to serve a section 21 notice at all. He could not cure that breach.

That seems an especially harsh interpretation of the changes introduced by the DA 2015. Time and future cases will tell whether a failure to supply a gas safety certificate or an EPC at the correct time results in a landlord not being able to determine an AST at all in the absence of a breach of the terms of the tenancy.

Of course, a landlord must also still comply with the tenancy deposit requirements and provide the tenant with the required information concerning the tenancy deposit. That requirement was in force before the DA 2015 came into force.

This blog post was written by legal director Gary Bird.

[1] Caridon Property –v- Shooltz (Unreported February 2018)