Recent Developments in Housing Law - October 2015
Since 1988, it may be only a small exaggeration to suppose that few questions are asked with such regularity as “is my section 21 notice valid?” Housing lawyers have naturally greeted news of a change to the rules surrounding s.21 (that is, of course, of the Housing Act 1988) with a customary mixture of amusement, delight, incredulity and disdain.
In this article, Graeme Kirk considers a number of changes recently introduced in the private (short term) rental sector, including to the s.21 notice.
A s.21 notice is the notice required to terminate an Assured Shorthold Tenancy without fault, either at the end of a fixed term or during its open-ended life as a ‘periodic tenancy’. Unlike under the old Rent Acts or those secure tenancies granted by local authorities which are regulated by the Housing Act 1985, the question of reasonableness does not arise and the Court is bound to give possession where a valid notice has been provided and the correct procedure followed. A possession order is in such cases mandatory and a ‘ground’ (such as arrears of rent) need not be made. The ‘accelerated procedure’ (part II of CPR Part 55) is available for s.21 claims, which means that although possession may only be obtained by Court order, where a landlord’s ducks are in line, there need not be a hearing for a Judge to make an order.
Historically, there have been a number of difficulties with the form and substance of the notice and particularly with the timing and the date upon which it is said to expire. Some of these latter problems, and ambiguities on this point, were addressed by the Court of Appeal in Spencer v Taylor  EWCA Civ 1600.
Parliament had in mind that a standardisation of the s.21 notice would alleviate many of the difficulties which had arisen and reduce the number of disputes. Ambiguities would further be tackled by the requirement to serve a booklet of standard obligations, setting out what tenants were entitled to know in a prescribed form.
Changes were implemented through the Deregulation Act 2015 and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 and ought to have resolved many of the old problems at a stroke. In the event, errors were soon identified and had to be rectified by the swift passing of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015 and the introduction of Form 6A as an annexe to those revised regulations.
S.36 of the Deregulation Act added new subsections to s.21 itself. Amongst these new provisions is a prohibition on serving notice within the first four months of the tenancy. Consequently notice may no longer be served with the AST itself, as was previously the custom of some landlords or their agents.
Neither can proceedings be issued any later than six months from the date of the notice (four months from the expiry of the notice for s.21(4)(a)). A s.21 notice may not, then, become a Sword of Damocles, perpetually threatening the tenant and creating insecurity during the tenancy or at least from the time that the notice is served. Use it, as they say, or lose it.
The Deregulation Act also sought to address the problem of ‘retaliatory evictions’ by preventing the (valid) service of a notice following service of a hazard notice upon report of an unremedied hazard to the local authority Environmental Health Officer. Quite how this will work with any additional burden it places on local authorities will no doubt be discovered. In the meantime, there is a useful guidance note published by the Department for Communities and Local Government, accessible through ‘gov.uk’, which includes a handy flow chart.
Energy Performance Certificates and Gas Safety Certificates have long been required, no s.21 notice can (validly) be served unless valid certificates are in place and have been served.
Tenants must be provided with ‘How to rent: the checklist for renting in England’, which can be provided by the landlord electronically and is available at: https://www.gov.uk/government/publications/how-to-rent.
Again, the errant landlord is punished by an inability to serve a s.21 notice, or at least to serve one and to be able to rely upon it as a valid basis for seeking possession.
At the same time as these new rules came in to force, private landlords had also to consider the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 came into force on 1st October 2015. In essence, each storey of a let property must have a smoke alarm and a carbon monoxide detector must be fitted in any residential room with a solid fuel burning appliance. The detectors and alarms must also be checked on each new tenancy. This is to be policed by local authorities with powers to fine.
These changes only apply in England and came into force on 1st October 2015 with prospective effect. It is perhaps a little early to assess their impact in litigation, or preventing it.