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).
(4E) Where—
(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.
Comments
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?
I think ‘given’ must mean ‘served’ as the term ‘given’ is already used in s.21(1) and s.21(4).
As for these new rules on time limits: More red tape and complicated rules.
If the aim was to prevent ‘Sword of Damocles’ notices a simple amendment to render notices invalid after a set duration would have sufficed. A template was even already in section 8:
“(c)those proceedings will not begin later than twelve months from the date of service of the notice.”
Simple.
Instead, we get a full page of verbose conditions and special cases… Especially, I don’t see any point in the restriction on the service date.
I agree to an extent. A simple time limit before the notice expires would have sufficed.
NTQ’s Section 8s and Section 83’s (Council tenancies) all have shelf lives, albeit depending on whether the notice period starts with service or expiry (yes more pointless procedures)
But what the 4 month period would do though is prevent a major obstruction to possession that DJs have expressed concern with at court user group meetings I have attended, in ending the practice common among letting agents of serving the S21 the day the tenant moves in, which usually comes before the protection of the deposit, even if protected the very next day, thus invalidating the notice and holding up possession for the landlord.
There is some logic in the change
I can’t believe that this change is to help landlords!
If landlords or agents serve notice too early, whereby invalidating the notice then that’s their problem.
(On this, though, I believe that there is a case law that the deposit may be protected after the notice has been served.)
With these changes they still have many opportunities to get it wrong, perhaps even more so than before, actually.
The change might also be aimed at preventing landlords from getting a possession order during the first six months of occupancy. Something that actually isn’t impossible at the moment.
But again, they could have closed that loophole with a simple change of the existing wording.
In real life, how do I serve a valid S21 notice that has a date specified that is the same as the end of the fixed term on a 6 months AST?
Interestingly, the new S.21 form, ‘Form No. 6A’ states in para 3 that “If you have a rolling or periodic tenancy…this notice is only valid for four months from date of ISSUE” (my emphisis).
Oops – upon my reading the new s.21 form would appear to be wrong then?! I stand to be corrected and hopefully I will be.
As landlords we do need to feed back to politicians (and tenants) on the way these sorts of legislative changes translate into rent increases. Effectively there is a transfer of money from good tenants to tenants who try to scam landlords and damage property. Legislation is supposed to reward good behaviour not encourage bad.
Looking at the proposed form (http://www.legislation.gov.uk/id/uksi/2015/1646) on page 4, section 3, is it asking for the date of service here?
I was thinking about maybe still serving these at the beginning of a six month fixed-term AST but with a live date from four months in, with an expiry on the last day of the six months and just going over how I would complete the new notice. There is an example in the notes beneath this section but using their example, would you insert 15th December 2015 in there or 17th February 2016 (which would be the date you’d use in section 2).
Paul
There must be an error in the item regarding periodic tenancies and the period of validity of the notice in order to commence proceedings.
All though the post is on time limits, it does seem that the obligation on the landlord to issue a Gas Safe Cert and the EPC by any given date is not actually specified for the purposes of S21 validity. Under the Gas Regs, a cert must be issued to a new tenant prior to entry and subsequent renewals within 28 days.
The Statutory Instrument creating the prescribed form declares that the 28 days does not apply but neither does it say when the two certs must be issued, and as importantly what is the situation for a landlord who has not complied by the start of the tenancy, but nonetheless needs to issue a S21?
I wonder whether some landlords/agents will still issue the Section 21 notice at the start of the tenancy, but just post date it? What would be the consequences of such an approach?