Deregulating possession

Landlords, letting agents, tenants, and those advising on assured shorthold tenancies (ASTs) should by now be familiar with the amendments introduced by the Deregulation Act 2015 (DA). Yet despite the legislation affecting ASTs granted on or after 1 October 2015 a lack of knowledge still seems apparent.

Many landlords are used to relying on section 21 of the Housing Act 1988 to secure possession of a property granted under an AST. Properly followed the procedure is 'a robust machinery' (Holman J in Mantel v Memon [2000] 33 EG 74) entitling a landlord to an order without having to establish fault or attend a court hearing.

Summary of amendments

Helpfully, for landlords, periodic ASTs no longer require the section 21 notice to expire on the last day of a period of the tenancy; but landlords must still give not less than two months' notice (section 35 DA).

A tenant cannot be served with a section 21 notice within the first four months of the commencement of the tenancy or in the case of a replacement tenancy within four months beginning with the day on which the original tenancy began. Once served proceedings must be commenced within six months of the date the notice was given (section 36 DA).

However, where a notice is given under section 21(4) specifying a date more than two months after the date the notice was given, proceedings for possession may not be begun later than four months from the date specified in the notice.

A new prescribed form for the section 21 notice is introduced (section 37 DA) (No 6A).

Section 38 DA introduces a new section 21A. It provides that a notice cannot be served if the landlord is in breach of one of the prescribed requirements. These relate to the condition of the dwelling-house or their common parts; the health and safety of occupiers; and the energy performance of the property. Landlords must now provide tenants with energy performance and gas safety certificates.

Section 39 DA inserts a new section 21B which provides that no notice can be served unless the landlord has provided the tenant with the latest version of the prescribed information (currently published by the Department for Communities and Local Government as 'How to rent: the checklist for renting in England').

Failure to comply

Landlords now have additional requirements with which to comply. Those who serve section 21 notices and issue proceedings in breach of the legislation will have to serve a fresh notice and potentially issue new proceedings. Failure to comply with the prescribed requirements and information prevents the landlord from serving a notice until they have complied with the relevant legal obligations.

Retaliatory evictions

Subject to some exemptions (section 34 DA) measures are also introduced to curb the temptation of less scrupulous landlords to evict tenants where the condition of the property is in question (section 33 DA). A landlord cannot serve a section 21 notice within six months of the local authority having served an improvement or emergency remedial action notice (section 33(1) DA).

Further, where the tenant made a written complaint about the condition of the property and the landlord (a) failed to provide a response within 14 days of receipt; (b) failed to give an adequate response; or (c) served a section 21 notice following the complaint, any section 21 notice will be invalid in the event of the local authority later serving an improvement or emergency remedial action notice (section 33(2) DA).

Any subsequent section 21 cannot be served for six months and a breach of section 33(2) DA requires the court to strike out the proceedings (section 33(6) DA).

Tips and traps

• Service of gas safety and energy performance certificates and the 'How to rent' checklist with the tenancy or at the very latest prior to the section 21 notice may avoid any later dispute;

• Both parties should be advised to record and confirm in writing at the outset the documents sent/received;

• Check the prescribed section 21 notice has been used;

Diarise the deadline for issuing proceedings; andLandlords must be made aware of the protection afforded in respect of retaliatory evictions. And, crucially, be familiar with the legislation, this is only a summary and does not cover the requirements in respect of deposits.

Stephanie Cope is a district judge based at the Bristol Civil and Family Justice Centre