Ignorance is no defence: landlords should be aware of changes in the law
The Deregulation Act 2015 made changes to the law for all assured shorthold tenancies granted on or after 1st October 2015. Until now, those changes were not retrospective. However, come the 1st October 2018, landlords need to be aware that the law will also apply to all assured shorthold tenancies, irrespective of when they were granted.
If you are a landlord that lets a property under an assured shorthold tenancy which pre-dates 1st October 2015 (a statutory periodic, or rolling tenancy) then you should be aware of these changes as they will affect your ability to serve notice on your tenant.
There is academic debate about how some of these changes will affect existing tenancies which were granted prior to October 2015. You may therefore want to consider entering into a new written tenancy agreement with your tenant and complying with the law now, to avoid uncertainty and risk if and when it is necessary to serve a Section 21 Notice and commence possession proceedings.
The Section 21 Notice
There is a prescribed form of Section 21 Notice, which needs to be used in all cases. Failure to use this prescribed form may result in the Section 21 Notice being invalid. This in turn would mean that you would be unable to regain possession of your property unless there was a breach of the terms of the tenancy.
Whilst the law is not 100% clear on this point, there is no reason why the prescribed form should not be used and there is no benefit to not doing so.
Gas safety certificate
A landlord has to provide a tenant with a gas safety certificate within 28 days of carrying out the required safety check. It must also give a copy of a certificate to any new tenant before they take up occupation.
A recent case (Caridon Property Ltd v Monty Shooltz ) makes for unwelcome reading for a landlord. In this case, a possession claim was dismissed because the landlord had not served the certificate before the start of the tenancy. In effect, this means that the landlord would never be able to serve a valid Section 21 Notice if a certificate was not served before the tenancy started. The only way to remedy this defect would be to undertake a check and serve a certificate before entering into a new tenancy with the tenant.
Energy performance certificate
The landlord must have provided the tenant with an Energy Performance Certificate for the property. If this is not supplied then a valid Section 21 Notice cannot be served. Whilst the above case did not specifically relate to the provision of an EPC, by analogy, it may very well apply. Landlords should therefore look to ensure that they have supplied a valid EPC to their tenants.
How to Rent Guide
The Ministry of Housing, Communities and Local Government have since 2015 published several versions of the “How to rent: The checklist for renting in England”. The most up to date version of this should have been served on a tenant before the start of the tenancy.
Whilst in theory the law will not require a landlord to serve this when the law changes in October 2018, it is a quick and easy step to take and landlords should get into the habit of serving this now.
It will no longer be possible for a landlord to serve a Section 21 Notice on a tenant instead of undertaking repair works which are required on the property. If the landlord is serve with a relevant notice to undertake works to their property, this can have the effect of preventing the service of a valid Section 21 Notice for a period of six months from the date of service of the notice.
It follows that it is important to keep any rental property in a good state of repair at all times, to avoid this issue from arising.
Period of validity of Section 21 Notice
Possession proceedings must be issued within 6 months of the date the notice was served. If this deadline is missed, a new Section 21 Notice will have to be served. A Section 21 Notice will also not be valid if it was served in the first 4 months of the fixed term tenancy.
A landlord’s ability to obtain possession of a property let under an assured shorthold tenancy is going to be adversely affected if they do not comply with the law.
All landlords should make sure that documents are given to tenants when they are supposed to be, and ensure that a tenant signs a document confirming that they have received them.
This can be used as evidence that the landlord has complied with their statutory obligations if and when a possession claim is required.
The above is merely a snapshot of the law in England and is not a substitute for proper legal advice.