This post looks at an issue which sounds bonkers at first glance but could prove serious for landlords.
The Deregulation Act 2015 brought in many new rules, many of them impacting on landlords’ ability to serve a valid section 21 notice.
One of these is the requirement to serve on tenants ‘prescribed information’ – which in this context means the Government’s ‘How to Rent‘ booklet.
I have to say that I rather approve of this – most tenants are ignorant about the complexities of landlord and tenant law and what their legal rights and obligations are. It is entirely right and proper that landlords should be required to give them with a written guide provided by the Government.
I discussed the basic rules about this here.
Needless to say, (and despite my efforts to inform them via this blog!) many landlords are also pretty ignorant about their legal rights and obligations – and so either forget or do not realise that they are supposed to serve this booklet at the start of the tenancy. But if so – what does that mean?
The consequences of failing to serve the How to Rent booklet
The immediate consequence is that the landlord is unable to serve a valid section 21 notice. However, unlike (for example) default under the deposit regulations, the problem can be resolved quite easily.
All you need to do is serve the booklet out of time and you are all right and able to serve your section 21 notice.
Or can you?
A question has arisen about the correct booklet that you need to serve.
A question from Tom
I was first altered to this issue when I was rung up by Tom Entwistle of LandlordZONE the other week. He told me that he had been consulted by a lady in this position (let’s call her Mrs X) who wanted to serve a section 21 notice but had failed to serve the How to Rent booklet at the tenancy start.
To her surprise, though, she had been told by the Council that she had to serve, not the current version, but the version of the booklet current at the time it should originally have been served – i.e. at the time the tenancy started.
The tenancy had started in November 2015, and Mrs X became aware of the problem in about July 2016. A new version of the How to Rent booklet had been published in February 2016. The Council were saying that the correct version for her to serve was the October 2016 version and not the current version from February 2016.
“Was the Council right?” Was the question Tom wanted to discuss with me.
Looking into the law
My first reaction was that this was total nonsense. Of course, the Council were completely wrong. No doubt some clerk was making it up to be difficult. I started to say this to Tom but then thought that maybe I had better check.
It is, after all, not unknown for the wording of legislation to have a different effect from what we all supposed – witness the problems we had up until last March with the deposit regulations after the Superstrike case.
So what is the law here?
The first act to consider is s39 of the Deregulation Act 2015. This says at subsections (2) & 3:
(2) Regulations under subsection (1) may—
(a) require the information to be given in the form of a document produced by the Secretary of State or another person,
(b) provide that the document to be given is the version that has effect at the time the requirement applies, and
(c) specify cases where the requirement does not apply.
(3) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a requirement imposed by regulations under subsection (1).
Hmm. The wording “the version that has effect at the time the requirement applies” indicates that the Council may be right. If we take it that the requirement applies at the time the tenancy starts.
What about the regulations themselves? The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 – section 3. This is what they have to say about it:
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 wording here “the version … that has effect for the time being” is unhelpful and a bit ambiguous. What does ‘for the time being’ mean?
- Does it mean at the time the booklet is served? Which in our case would mean the February 2016 version, or
- Does it mean at the time it was supposed to have been served? Which in our case would mean the October 2015 version.
It’s hard to say.
Why it’s important
This sounds like a stupid point – of course, Parliament must have meant the most recent version. What is the point in serving an out of date information booklet? But actually, it’s quite important.
Let’s take the case of Mrs X. Say she serves the February 2016 version of the booklet on her tenant and then serves her section 21 notice.
The tenant then trots along to the Council who tell her that the How to Rent booklet is the wrong one and that she has a valid defence to any claim for possession. And that in the circumstances if she moves out of the property they will consider her to be voluntarily homeless and that they will only re-house her (and her three children) if she defends the case and loses.
They are quite capable of doing this – particularly if they don’t actually have any properties available for the tenant right now and want an excuse to fob her off.
What can the tenant do? Assuming she is on benefit and unable to afford (or even find) any suitable property for herself and her young family, she has no alternative but to stay in the property and defend any claim for possession.
Of course, in a way we all hope that she will do that as we will then find out the answer! However court proceedings, particularly defended court proceedings, are unpleasant and stressful for both parties and will be very expensive for the landlord – whether she wins or loses. And she is unlikely to get her costs back from the tenant even if she wins.
Defended possession claims are something which landlords should try to avoid at all costs.
My advice for landlords
Don’t think that just because it is the most sensible answer, a court will necessarily plump for the option of serving the most recent version when the booklet is served late. The Court of Appeal have shown in several recent cases that they will follow the letter of the law – however inconvenient this may be for landlords.
Witness the Superstrike and Kumarmasamy cases. Both of which caused endless problems until they were resolved – one by the Deregulation Act 2015 and the other by the Supreme Court.
So my advice for landlords is – that until this matter is resolved by a decision from a court of record, you should serve BOTH booklets.
Then whichever way a court eventually decides – you are covered.
Should you need it, you will find an archive of the older How to Rent booklets on the Nearly Legal site here.
I very much hope that if this ever goes before a court, they will take the sensible view and say that if the How to Rent booklet is being served late, and there has been a new version issued since the date the booklet should have been served, then the new one is the one to serve.
After all, this is the booklet which will be available on the .gov website. And the legislation does not specifically say that the booklet HAS to be served at the start of the tenancy.
However, we all know that sometimes laws are interpreted in stupid ways. Which is why we have to take into account that stupid rules may apply – and protect our position as best we can.