A series of articles looking at the new rules regarding section 21 notices – applicable in England only – for tenancies created after 1 October 2015.
Time limits for service of the section 21 notice
In the past, it was common for a section 21 notice to be served at the start of a tenancy, as a precautionary measure only. Whether or not the landlord intended to actually use it.
This practice will now have to end. Under the new wording inserted into the Housing Act by the Deregulation Act 2015:
(4B) A notice under subsection (1) or (4) may not be given in relation to an assured shorthold tenancy of a dwelling-house in England—
(a) in the case of a tenancy which is not a replacement tenancy, within the period of four months beginning with the day on which the tenancy began, and
(b) in the case of a replacement tenancy, within the period of four months beginning with the day on which the original tenancy began.
(4C) Subsection (4B) does not apply where the tenancy has arisen due to section 5(2).
What does that mean? Well, my understanding is that a ‘replacement tenancy’ is where a new tenancy agreement is entered into between the same landlord and tenant for the same property.
So the section 21 notice can only be served after four months after the start of the original tenancy. If after the end of the original fixed term, the tenancy continues as a new periodic tenancy (under s5(2)), then the time limit does not apply.
That is all well and good – but what if the new tenancy is not exactly the same? For example, if one of the tenants has left and has been replaced with someone new?
It looks as if the four-month prohibition on section 21 notices will then also apply to that tenancy, as it will not be exactly the same – and the new tenant should have the benefit of the four-month prohibition.
Time limits for using the section 21 notice
This is now subject to new sections 4D and 4E
(4D) Subject to subsection (4E), proceedings for an order for possession under this section in relation to a dwelling-house in England may not be begun after the end of the period of six months beginning with the date on which the notice was given under subsection (1) or (4).
(a) a notice under subsection (4) has been given in relation to a dwelling-house in England, and
(b) paragraph (b) of that subsection requires the date specified in the notice to be more than two months after the date the notice was given,
proceedings for an order for possession under this section may not be begun after the end of the period of four months beginning with the date specified in the notice.
Clearly the new rules are intended to limit the period of time that landlords will have to use the section 21 notice.
However, I can see that there may be scope for argument here. For example:
The meaning of ‘given’
4D says ‘on which the notice was given’ – what does the word ‘given’ mean? Does it mean
- the date of issue
- the date it is actually handed to the tenant or is received by them (for example via the post) or
- the date it is deemed served under the deemed service rules in the Civil Procedure Rules?
The ordinary English meaning of the word ‘given’ would indicate 2 but in some cases it will be impossible for the landlord to know when this is. So it will probably be taken as 3. But that is by no means certain.
So landlords are advised to issue their proceedings well before the end of the period to minimise the tenants opportunities to challenge on this basis.
Differences for longer periodics
Then what about 4E? Here, if a periodic tenancy is longer than one month, then Instead of making the period the notice can be used relate to when it was served, the period will be four months (as opposed to six) and will relate to the expiry date given in the notice.
Arguably this could be further forward in the future. Under the new subsection 4ZA, section 21(4) notices no longer need to give a date which is a last day of the period of the tenancy. So the date can be any date the landlord wants.
Which means that where a periodic tenancy is longer than a month, the landlord will be able to move forward into the future the period of time the notice can be acted upon, by giving a later expiry date.
This may or may not be significant, but it is interesting.
The effect of these new rules will almost certainly be that landlords will usually only serve a section 21 notice when they actually want to evict the tenant. Rather than, as now, where section 21 notices are often served routinely as a matter of course.
One possible effect of this could be the interpretation of the guidance for statutory rehousing of tenants in priority need. At the moment, service of a section 21 notice can’t really be considered as a real threat to a tenant, as it is so often served in circumstances where it is nothing of the kind.
However under the new rules – service of a section 21 notice will normally mean that a landlord is intending to use it. Will this affect the way the notice should be treated by Homelessness Officers?
Do you have any views on the new time limits?