A series of articles looking at the new rules regarding section 21 notices – applicable in England only – for tenancies created after 1 October 2015.
Today we look at section 3 of the regulations here.
I should perhaps start by apologising for the fact that this post may either make you feel as if you want to gnaw your own arm off or alternatively may make your eyes glaze over, permanently. I know, I felt a bit like that when writing it.
But the legislation is like that. It’s not my fault. Honest. Look on the bright side – it could help your insomnia …
Let’s take it in parts. First of all – what about the section title?
Requirement for landlord to provide prescribed information
I forsee that this is going to cause endless confusion, because to most landlords ‘prescribed information’ means the tenancy deposit prescribed information (which is also required for section 21).
So in future we are going to have to spell out which prescribed information we are talking about.
The Prescribed Information Is:
Let’s take a look at the section wording
3.—(1) A landlord under an assured shorthold tenancy of a dwelling-house in England, or a person acting on behalf of such a landlord, must give the tenant under that tenancy the information mentioned in paragraph (2).
(2) The information is the version of the document entitled “How to rent: the checklist for renting in England”, as published by the Department for Communities and Local Government, that has effect for the time being.
The booklet is available here.
Others have criticised this requirement, saying that the booklet is really aimed at people looking for accommodation rather than those who have already found it and are about to sign the tenancy agreement.
However, I don’t agree – I think it has a lot of helpful information which tenants need to know about their rights, at all stages of their tenancy.
For example, many tenants will be wholly ignorant of the tenancy deposit protection rules and the need for gas safety certificates, and it is right and proper that they should be given some information about it.
Sometimes Government comes up with a good idea. I think this is one of them. In principle. But there are major problems in the practical implementation of this requirement.
‘that has effect for the time being’ …
One problem is going to be knowing, months or (for tenancy agreements with a long fixed term) years after the event, whether the booklet served at the start of the tenancy was actually the current version at that time.
Nearly Legal have indicated that thy may be keeping copies of all versions for people to check. Certainly SOMEONE will have to do this, as this will no doubt become a popular defence for tenants being evicted under section 21.
But it should not be left to a blog run by volunteers to do this.
Service of the ‘How to Rent’ booklet
Lets have a look at the next section:
(3) The information may be provided to the tenant—
(a) in hard copy; or
(b) where the tenant has notified the landlord, or a person acting on behalf of the landlord, of an e-mail address at which the tenant is content to accept service of notices and other documents given under or in connection with the tenancy, by e-mail.
As the Dept are not going to publish the booklet in ‘hard copy’ form, to serve a ‘hard copy’ you will need to print it out yourself.
It is interesting that service via email is permitted, if the tenant has agreed email can be used for service of documents. (The Landlord Law tenancy agreements have, for some time, provided for this.)
Generally the best method of proof of documents is to get the tenant to sign and date a physical copy to show receipt. An email confirming receipt of a document sent via email would probably suffice now in most cases.
However, if you are about to serve a section 21 notice on ‘difficult tenants’, probably re-serving the booklet (in physical form) at the same time will avoid problems.
Quick question – will the landlord have to actually attach the booklet in pdf format to his email or will an email linking to the booklet on the internet suffice? I suspect the former but it would be nice to know for sure.
But what about when the booklet is updated?
(4) Paragraph (1) does not require a landlord, or person acting on behalf of the landlord, who has provided the tenant with the document mentioned in paragraph (2) to supply a further copy of the document each time a different version of that document is published during the tenancy.
Well that is good news as it looks as if this booklet is going to be regularly updated.
The regulations carry on:
(5) This regulation does not apply—
(a) where the landlord is a private registered provider of social housing; or
(i) the tenancy (“the new tenancy”) is a replacement tenancy;
(ii) the landlord, or a person acting on behalf of the landlord, provided the tenant with the document mentioned in paragraph (2) under an earlier tenancy; and
(iii) the version of the document provided to the tenant under the earlier tenancy is the same version as the version which is in effect on the first day of the new tenancy.
(6) In this regulation “replacement tenancy” has the same meaning as in section 21(7) of the Act.
So, for ‘replacement tenancies’ the booklet will have to be re-served if it has changed but not otherwise. But what are ‘replacement tenancies’?
Lets take a quick look at section 21(7) (of the Housing Act 1988)
For the purposes of this section, a replacement tenancy is a tenancy—
(a) which comes into being on the coming to an end of an assured shorthold tenancy, and
(b) under which, on its coming into being—
(i) the landlord and tenant are the same as under the earlier tenancy as at its coming to an end, and
(ii) the premises let are the same or substantially the same as those let under the earlier tenancy as at that time.
This will include situations where a new tenancy agreement is signed between the same landlord and the same tenants for the same property.
What about periodic tenancies?
What then about when the fixed term ends and the tenancy continues under a new ‘periodic tenancy’?
My view is that periodic tenancies are included as the wording of s21(7) would appear to include them. Nowhere that I can see are tenancies created by s5 of the Housing Act 1988 (the section which provides for periodic tenancies) specifically excluded. As, for example, they are in the new s4(C ) of section 21 which says that they (ie periodic tenancies) do not apply to the new section 4(B) on time limits.
So my view (but I may be wrong – please tell me if I am) is that this section includes periodic tenancies within the definition of replacement tenancy.
So this means that after the fixed term ends – if the tenant stays in occupation (whether this is under a new fixed term or under a periodic tenancy) the booklet needs to be re-served on the tenant if it has changed since it was served originally. But otherwise not.
So to be on the safe side, all landlords and agents need to re-serve it anyway. If that can be done via email, it should not be a huge burden provided you have your system set up to do this. However, I can see a lot of landlords falling foul of this – either because of ignorance or just forgetting about it.
Some extra queries
If I am right on the periodic tenancy point, does ‘replacement tenancy’ include contractual periodic tenancies or not?
I suspect not, which may be another reason to have your tenancy agreement provide for a contractual periodic tenancy.
Then on the service of the booklet via email – if it was all right for the landlord to ‘serve’ it by sending an email with a link to the download page, it is arguable that this would be enough as this page will always have the most recent edition.
I suspect however that this is too easy a solution and the regulations mean that the pdf must be attached to the email for it to be properly served.
If your eyes have almost completely glazed over by this point (or if your arm is hanging by a thread) – I don’t blame you. If something like this were included in a contractual document it would probably be deemed ‘unfair’ because it is so confusing.
In fact, the more I looked into it (this post has been some time in the writing) the more problems I found.
I think that there is a strong argument for some consolidating housing legislation now – or better still a review of the Law Commission’s 2006 report – now being implemented in part in Wales.
We need serious simplification of this law.