Unpicking the Deregulation Act 2015

The Deregulation Act was one of the last Acts to receive royal assent in the previous parliament. One
of the areas covered is housing, with some of the changes set
to have an impact on private residential landlords and tenants.

Correcting Superstrike

The Court of Appeal decision
in the case of Superstrike v Rodrigues in 2013 caused consternation for landlords.
The effect of that case was
that many landlords found themselves in breach of the deposit regulations, even though they had carefully followed government advice
at the time.

The Deregulation Act serves to correct these matters as follows:

• Landlords who took a deposit before 6 April 2007, where the fixed term ended after that date and continued as a periodic tenancy, are required to protect these deposits. However, they have been given a grace period of 90 days from 26 March 2015 (the day of royal assent) to do so;
• Landlords who took a deposit before 6 April 2007, where the fixed term also ended before that date (and no fixed-term agreement has since been signed), do not need to protect the deposit, and are not vulnerable to the penalty for non-compliance. However, if they wish to use section 21 they must protect the deposit before service of the notice or it will be unenforceable;
• Landlords will not need to re-serve prescribed information after the end of the initial fixed term if the deposit was properly protected and the prescribed information served on the tenant during that initial fixed term. Once will be enough;
• It is made clear that a landlord's agent's details can be given in the prescribed information; and
• These new rules will apply to ongoing court claims (although landlords will not be able to claim costs against tenants), but not if the case has been settled or 'finally determined'. 'Finally determined' means that a court order has been made and the time for appeal has passed.

These measures all came into force on 26 March.

Retaliatory eviction

Although Sarah Teather's ill-fated private member's bill was 'filibustered out' by two Tory MPs, most of the measures now appear in the Deregulation Act. Provisions include that a section 21 notice will be invalid if it follows a tenant's complaint about the condition of his rented property, where the landlord fails to provide an 'adequate response'. An 'adequate response' is one which says what the landlord is going to do about the complaint and sets out a reasonable timescale to do it.

If the tenant then complains to the local authority and the local authority serves a 'relevant notice' (either an improvement notice or if it carries out remedial action), the landlord cannot then serve a section 21 notice within the following six months unless the notice is cancelled in some way.

These provisions are expected to come into force in October 2015 and will only apply to England.

Other provisions regarding section 21 (England only) are:

• Rules preventing the service of section 21 notices during the initial six months of a tenancy and limiting the 'life' of the notice to six months after service;
• Providing for the secretary of state to prescribe a section 21 form;
• Preventing the use of section 21 where landlords have failed to comply with repair, health and safety, and/or energy efficiency measures;
• Requiring landlords to serve prescribed information (yet to be determined) on tenants before a section 21 notice can be served; and
• Setting out rules for the repayment of rent where a tenant leaves early after service of a section 21 notice.

The tenancy deposit amendments are most welcome and were long overdue. We will have to see how the retaliatory eviction measures work out,
but I am concerned about the reliance on already-overworked local authorities, many of which have previously reduced their housing staff due to cuts.
How will they cope with this new burden?

As regards the final set of changes to section 21, it is not known when or if they will come into force, although some of the measures will require further research and consultation before statutory instruments can be drafted. SJ

Tessa Shepperson is a lawyer specialising in residential landlord and tenant law, and writes daily in the Landlord Law blog