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Section 21 Notices - a simplification of the process?

On first impressions, the provisions of the Housing Act 1988 ("HA 1988")which relate to the termination of assured shorthold tenancy agreements appears straightforward. A landlord does not need a reason for bringing the tenancy to an end (thus far private landlords have not been affected by the 'proportionality' issues that have impacted public sector landlords) but can instead simply give a tenant 2 months' notice to bring the tenancy to an end. However, as many a landlord has discovered to their cost, the provisions of section 21 of the HA 1988 were not as straightforward as they appear, particularly when dealing with periodic tenancies where the notice seemingly needed to expire on an anniversary date of the periodic tenancy to be valid. There has been some discussion in recent times about whether this requirement remains for periodic tenancies and landlords with existing ASTs do still need to exercise caution when serving a s21 Notice.

The good news as far as s21 is concerned is that the law is changing. On 1 October 2015 the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646) will come into force, these regulations being made pursuant to the Deregulation Act 2015. These new rules apply to all new tenancies made from 1 October 2015 - pre October 2015 tenancies will still be governed by the old rules.

In short, a new prescribed form section 21 notice is to be introduced. The new notice will simply require a landlord to give at least 2 clear months' notice to a tenant, avoiding the need to hit anniversary dates. Landlords should also note that the practice of some landlords of giving the section 21 notice immediately after the commencement of the tenancy is being stopped; the new rules now provide that a section 21 notice cannot be given in the first 4 months of the tenancy.

The change in the rules re section 21 notices is however the only simplification in what in residential lettings law. As our previous article discussed, the Deregulation Act does introduce restriction on a landlord's ability to serve a section 21 notice when disrepair allegations have been formally raised.  Further, this Act is also now imposing an obligation on landlords of all new ASTs to provide evidence that they have provided their tenants with an Energy Performance Certificate (EPC), a Gas Safety Certificate and with the most up to date version of the Department for Communities and Local Government (DCLG) document titled "How to Rent: the checklist for renting in England". Failure to provide any of these documents will prevent a valid section 21 notice being served.

Many landlords are still encountering difficulties with complying with the tenancy deposit legislation, 8 years after its introduction. The imposition of yet more requirements will mean that landlords will have to ensure they exercise caution when dealing with their letting properties and seek advice in the event of any uncertainty. 

This article was jointly written by Joanne Young and Ella Nyakuedzwa-Smith.