Changes to the rules concerning Assured Shorthold Tenancies come into place on 1 October this year. So how will this affect you as a landlord?
The Act brought into force new rules in which Assured Shorthold Tenancies (ASTs) in England could be granted and terminated, and which restrict the Landlord’s ability to serve a notice under Section 21 of the Housing Act 1988 to terminate the AST.
Between 1 October 2015 and 1 October 2018 these requirements only applied to an AST created on or after 1 October 2015. However, from 1 October 2018 the requirements will apply to all ASTs irrespective of when the AST was granted.
Q. What is the effect of the act?
A. A landlord will only be able to serve a Section 21 Notice once he has first complied with the regulatory requirements under the Act. These are that the landlord must have provided the tenant with the following:
An Energy Performance Certificate (EPC) free of charge.
A Gas Certificate.
The current version of the ‘How to Rent: The Checklist for Renting in England’ booklet.
Q. What if the tenancy was granted prior to 1st October 2015?
A. There is no longer the option of serving the non-prescribed form of Section 21 Notice which does not require compliance with the Act. Only the prescribed form of Section 21 Notice can be used from 1 October 2018.
Q. Can the landlord comply with the requirements after the tenancy has been granted?
A. This is a topic of much debate. In a recent County Court case which is non-binding which was heard in February this year, it was held that the Gas Safety Certificate must be provided to the tenant at the start of the tenancy and that a Landlord is unlikely to be able to serve a Section 21 Notice where it is served late.
The view is that it cannot have been Parliament’s intention to give a tenant full security of tenure and the Landlord cannot be forever precluded from serving a Section 21 Notice. Binding authority is required to give clarity.
Q. Does the landlord have to use the prescribed form of Section 21 Notice?
A. Yes, from 1 October 2018 the prescribed form of Section 21 Notice must be used for all ASTs.
Q. Can possession proceedings be issued after 1 October 2018 relying on a Section 21 Notice served before 1 October 2018 which was not in the prescribed form?
A Yes, the Act should not affect the ability to issue proceedings after 1 October 2018 but relying on a Section 21 Notice which was correctly served prior to that date.
Q. Will the Court grant possession where there has not been compliance with the statutory requirements for an AST granted before 1 October 2015?
A. It remains to be seen whether the Courts will grant possession where a prescribed form Section 21 Notice has been served on or after 1 October 2018 but the Act’s requirements had not been complied with prior to 1 October 2018. It cannot be the case that the landlord will forever be prevented from obtaining possession although Courts may not be sympathetic when faced with a landlord who has failed to take action during the three year transitional period.
Q. Will it affect the accelerated possession procedure?
A. The current Claim Form for Accelerated Possession requires compliance with the Act’s requirements. There are therefore difficulties with using the current claim form and relying on the accelerated possession procedure when the Act has not been complied with for pre 2015 tenancies.
From 1 October 2018, a landlord may only be able to proceed by means of the ordinary possession procedure route.