8 December 2015

Taking Possession: Landlords Take Note, the Law has Changed

Section 21 of the Housing Act 1988 (the “Act”) allows landlords to gain possession of their property rented under an Assured Shorthold Tenancy Agreement (“AST”) by serving notice on the tenant. A valid notice will require the tenant to vacate the property once the fixed term has expired without the landlord having to establish any ‘grounds’ for possession. The procedure to date has favoured the rights of landlords, but tenants have been granted greater protection under new rules that came into force on 1 October 2015.

The Deregulation Act 2015 imposes restrictions on a landlord’s ability to end an AST and specifies certain information that must be given to tenants about their rights. Failure to comply could invalidate a notice served under section 21 and it is therefore important that landlords and their agents are aware of the changes. The new rules apply to all ASTs granted on or after 1 October 2015; the old rules still apply to ASTs granted before this date.

No More Retaliatory Evictions

Retaliatory or ‘revenge’ eviction is where a landlord evicts a tenant after they make complaints about the condition of the property. The new provisions seek to prevent this practice. If the tenant has made a written complaint about the condition of the property and the landlord has either failed to respond within 14 days, or failed to deal with the complaint adequately, the tenant can complain to the Local Authority. The Local Authority will then inspect the property and serve an improvement notice (where appropriate). This prevents the landlord serving a section 21 notice within 6 months of the improvement notice and renders any notice already served ineffective.

Timing

Landlords cannot serve a section 21 notice in the first 4 months of a tenancy. This used to be common practice for some landlords to ensure tenants would vacate immediately at the end of the fixed term. For 6 month tenancies, this creates difficulties; notice cannot be timed to coincide with the last day of the fixed term because notice must be served at least 2 months before the end of the fixed term.

A ‘use it or lose it’ rule is also now in force; where necessary, possession proceedings must usually be commenced within six months of service of the notice.

Information for Tenants

Landlords are now required to provide tenants with the following documents;

  • Energy Performance Certificate;
  • Gas Safety Certificate; and
  • DCLG booklet “How to rent: The checklist for renting in England

These documents must be issued to tenants prior to service of a section 21 notice, and preferably at the outset of the tenancy. A new prescribed form of section 21 notice has also been issued, which must be used to end tenancies granted on or after 1 October 2015.

Implications

Landlords and letting agents must ensure they amend existing procedures for evicting tenants under ASTs. Timing and issues with the condition of a property are likely to cause particular difficulties over the coming months for landlords caught out by the new rules. Failure to comply could invalidate a section 21 notice and delay possession.

 If you are unsure about the legal requirements, seek advice to prevent issues before they arise.

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About the Author
Syed Alam, Senior Associate Solicitor
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