Section 21 important new changes to recover possession

In much the same way that the rules for protecting a tenant’s deposit were inflicted upon unsuspecting landlords back in 2007, further changes have been made which impose further requirements on landlords wanting to obtain possession of their property.

As of October last year through the Deregulation Act 2015, further demands were made of landlords wanting to obtain possession through serving a Section 21 notice – a means of ending an assured shorthold tenancy (AST) ensuring the tenants vacate the property.

The new rules will affect all AST agreements commenced on or after October 1, 2015 – and as of October 1, 2018, will affect all ASTs regardless of when they began – so landlords need to be fully aware of the rights of themselves and their tenants.

The major changes for landlords are:

• Timing – under the old rules, a landlord could serve a section 21 notice 12 months in advance of the termination date; now a landlord is prevented from serving a section 21 notice within the first 4 months of the term. This will cause particular problems for 6 month tenancy agreements. Six month tenancy agreements (should the tenant refuse to leave) are now all but obsolete and the earliest a section 21 notice can expire will be 6 months and a few days;
   
• Documents – previously, a landlord, when taking a deposit, simply had to protect that within an authorised scheme and provide the prescribed information to the tenant within 30 days. Under the new rules, the landlord must do this in addition to providing  the tenant with an energy performance certificate free of charge, a gas safety certificate and the latest government publication on “How to rent: The checklist for renting in England”;
   
• Repairs – failure to follow prescribed and time-limited repair processes can invalidate section 21 notices and may prevent another notice from being relied upon for a further six months. This also eliminates retaliatory evictions where landlords seek possession following complaints by tenants on the state of repair of the property;
   
• New notice – a new form of notice must be used in some situations; failure to use this and instead using an old notice can render it invalid, even if all of the other conditions have been complied with. This can result in a new notice being served and allowing for two months to expire before relying on the same; &
   
• Overpayment – tenants are also entitled to a refund of any overpayment of rent in circumstances where rent is paid in advance. This will be considered on a pro-rata basis.

One positive for landlords is that the new form of section 21 notices no longer have to expire on the last day of a period, meaning those notices previously deemed invalid for not expiring on a given day are now obsolete – although this set day rule had already all but disappeared thanks to the recent decision in the case of Spencer v. Taylor (2013).

The additional provisions made by the Deregulation Act, together with the continued requirement to protect the deposit and provide the prescribed information within 30 days, means that landlords must act swiftly when dealing with any complaints or enquiries by tenants, and seek legal advice if and whenever necessary.

Scott Cable is an Associate at Newcastle law firm Sintons, with a specialism in property disputes. For advice on this or any other matter, contact Scott on 0191 226 7806 or scott.cable@sintons.co.uk