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Possession notices – The brave new world

As of 1 October the procedure for giving a tenant notice under an Assured Shorthold Tenancy has been radically changed. This is a result the Deregulation Act 2015, which has previously altered the Tenancy Deposit position once before. The somewhat vague name of the Act, which deals with a wide variety of subjects, is likely to have caught a number of landlords and agents on the hop.

Section 21 notices relate to the landlord seeking possession at or after the end of the fixed term, and none of the below affects the alternative Section 8 notice, which is based on the tenant’s actual conduct in, for example, failing to pay rent.

The new regulations apply to tenancies that either commence, or become periodic, after 1 October 2015, and the major changes are as set out below:

Serving the s21 Notice too early

Until now it has been common practice for a landlord to serve a s21 notice immediately after the tenancy is signed, to avoid the chance of failing to do so in a timely fashion later on. Under the new regulations it is impossible to serve a valid s21 notice within the first four months of a tenancy. Existing law already confirms that such a notice cannot specify a possession date within the first six months (and the notice period is of course two months), but landlords will now need to diarise that four month period if they want the option of removing a tenant at the end of a six month fixed term.

Acting on the s21 Notice too late

Another mainstay of possession claims has been the longevity of a s21 notice. So long as a notice has been served validly at some time in the past, a landlord can act on it months or years after its deadline date. This luxury has now been withdrawn and a new s21 notice will have a lifespan of six months, running from the date on which the notice was given (not the date on which the notice expires.)

These two provisions mean that the service of a notice “just in case” is now no longer an option, and  tenants should understand that the service of a notice will now be much more likely to result in actual legal action.

Gas and Electricity Certificates

Another introduction is that any new s21 notice will only be valid if tenants have been provided with prescribed information. This is separate to deposit protection information (a lack of which will also render a notice invalid) and currently extends to gas safety certificates and environmental performance certificates. Landlords are therefore recommended to ensure tenants have these as early as possible, to avoid lost time if a s21 notice needs to be re-served. This is likely to apply to any notice served from 1 October, on any tenancy. What happens with tenancies where the tenant will not permit access for the relevant inspections is far unclear.

Landlords are also expected to provide the government’s rental information leaflet, which can be found here, before a notice can be validly served.

Prescribed form of notice

The other major change is that a set form has been provided, 6A, for all new s21 notices. This is paired with a confirmation that the old requirement to serve a notice on the last day of a rental period, for a periodic tenancy, has finally been dispensed with. This has in the past been a bugbear for landlords, but judicial decisions have previously decreased its relevance in any event.

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Luke Patel

Partner and Head of Dispute Resolution
Commercial Dispute Resolution
0113 227 9316
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Luke Patel Blacks Solicitors LLP