From 1 October 2015, big changes were made to section 21 Housing Act 1988 for tenancies in England. Some of these changes apply to all tenancies (including pre October 2015) from October 2018 but not all of them.Extra requirements were introduced whereby a section 21 notice (two months no fault notice) could not be served unless EPC, gas safety and How to Rent Guide have been given amongst other things like retaliatory evictions.
These changes were brought in by the Deregulation Act 2015 and The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.
In the Deregulation Act, it states very clearly that upon commencement (1 October 2015), the rules only apply to tenancies in England granted on or after 1 October 2015 (including renewals). Then, the rules apply to ALL tenancies from 1 October 2018. This includes tenancies granted before October 2015. The only exception is the requirement to provide the How to Rent Guide (because it didn’t exist before October 2015). This made sense because it effectively created a three year transition period to get used to the rules for new tenancies before applying to all tenancies from October this year.
However, there is confusion about the application of some of the rules from 1 October 2018 because of the wording of the regulations which gives detail to some of the elements.
To summarise, from October 2015, the following were introduced by the Deregulation Act 2015:
- new rules to prevent retaliatory evictions
- removal of the requirement to expire a section 21 notice under a periodic assured shorthold tenancy ‘after the end of a period of the tenancy’
- time limits when a section 21 can be served from the time a new tenancy is granted
- a ‘use it or loose it’ provision after service of a section 21 notice
- a new ‘prescribed form’ which must be used when serving a section 21 notice
- compliance with certain ‘prescribed requirements’ before a section 21 can be served
- the giving of prescribed information (how to rent guide) under any new tenancy
- repayment of rent apportioned daily where a tenant leaves as a result of a section 21 notice being served
Of those listed above, it’s clear from the legislation that the How to Rent Guide will not apply to tenancies granted before 1 October 2015 (as long as no renewal after that date).
However, the following elements are less clear:
- a new ‘prescribed form’ which must be used when serving a section 21 notice
- compliance with certain ‘prescribed requirements’ (EPC and gas safety record) before a section 21 can be served
The Deregulation Act makes it clear that these two elements listed above will apply to ALL tenancies from 1 October 2018. However, the regulations which detail the prescribed requirements (The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015) state in regulation 1 that the regulations apply to tenancies granted on or after 1 October 2015. There are provisions about a statutory periodic tenancy arising after 1 October 2015 but we don’t need to worry about that just for now. The regulations make no reference whatsoever about applying to ASTs granted before October 2015 – only that they apply to ASTs granted on or after 1 October 2015.
To recap and summarise then, the Act says that regulations made detailing a new section 21 prescribed form and legal requirements that must have been completed before a section 21 is served apply to ALL tenancies from 1 October 2018 (including those granted before 1 October 2015). But, the regulations detailing the new style form and legal requirements (EPC and gas safety) only apply to ASTs granted on or after 1 October 2015 (including renewals).
Where does that leave us? Confused is the answer!
It seems that new regulations are required that will apply to tenancies granted on or after 1 October 2018 or, an amendment to the legislation is needed to clear this up.
Update 25 June 2021: Minister v Hathaway & Anor [2021] EWCA Civ 936 (23 June 2021) has settled this and the EPC, gas safety and how to rent guide are not required to be given before serving a section 21 where the tenancy was granted before 1 October 2015.
Contents
Summary of each element
Let’s go through each element of the Deregulation Act and see its application to ALL tenancies (including ones granted before 1 October 2015) as of 1 October 2018.
Retaliatory eviction provisions
The retaliatory eviction provisions will apply to all assured shorthold tenancies in England from 1 October 2018 including those granted before October 2015.
Removal of requirement to expire notice “at the end of a period”
The requirement to expire a section 21 notice “at the end of a period” will apply to all tenancies from 1 October 2018 including those granted before October 2015.
Time limits when section 21 can be served and must be used
The provisions which limit service of a section 21 notice until after the first four months of a tenant first moving in to a property and that the notice must be used within 6 months of service will apply to all tenancies from 1 October 2018 including those granted before October 2015.
New prescribed section 21 form
This one is less clear. On the one hand, the Act states the new form of notice is to be used for all ASTs from October 2018 but the regulations creating the form states that those regulations apply to ASTs granted on or after 1 October 2015.
Therefore, at the time of writing, it seems that the new prescribed form will not have to be used for tenancies or renewals granted before 1 October 2015.
That being said, because the rule about expiring at the end of a period of the tenancy is being abolished for all ASTs from 1 October 2018 and the time limit rules etc. apply, there appears no reason why the new form shouldn’t be used. There will be no benefit (unlike now) to using an old style form from 1 October 2018. The new prescribed form makes it clear in its notes that it can be used for tenancies prior to October 2015 if a landlord wants to. It just might not be legally required as the rules are currently written.
Compliance with legal requirements before serving a section 21
Again, this one is not clear. The Act states that any prescribed legal requirements made by regulations will apply to all AST’s from 1 October 2018. The regulations specify the legal requirements as being the requirement to provide an EPC and gas safety record. However, those same regulations state that those requirements apply to ASTs granted on or after 1 October 2015.
Therefore, it would seem unless new regulations are introduced or an amendment is made, the requirement to have supplied an EPC and gas safety record will not be necessary to be shown before section 21 can be served unless the tenancy or renewal was granted on or after 1 October 2015.
Update 25 June 2021: Minister v Hathaway & Anor [2021] EWCA Civ 936 (23 June 2021) has settled this and the EPC, gas safety and how to rent guide are not required to be given before serving a section 21 where the tenancy was granted before 1 October 2015.
How to rent guide
As discussed earlier, the how to rent guide will not apply to ASTs granted before 1 October 2015. This is clear both in the Act and the regulations. The reason is that the guide didn’t exist before October 2015 so was never possible to comply with (compare for example the EPC and gas safety which was still a legal requirement even before October 2015).
Update 25 June 2021: Minister v Hathaway & Anor [2021] EWCA Civ 936 (23 June 2021) has settled this and the EPC, gas safety and how to rent guide are not required to be given before serving a section 21 where the tenancy was granted before 1 October 2015.
Return apportioned rent if the tenant leaves as a result of section 21
This provision will apply to all ASTs from October 2018 including those granted before October 2015.
Statutory periodic tenancy
We mentioned briefly above about statutory periodic tenancies arising at the end of a fixed term AST. Just to clarify, there are also provisions in the Act and Regulations about a statutory periodic tenancy arising on or after 1 October 2015 in relation to a tenancy granted before that date. This is overly confusing to add into each element above. Basically, a statutory periodic tenancy that arises on or after 1 October 2015 (which is technically a new tenancy), is effectively ignored for the rules and is treated as though it was a tenancy granted before 1 October 2015.
More information
For more detailed analysis and discussion of this ‘quirk’ in the regulations, please see this NearlyLegal article.
Furthermore, MHCLG produced a newsletter on 5 October 2018 (Private Rented Sector Newsletter – October edition) confirming that the information requirements (gas safety, EPC and how to rent guide) do not apply to pre-October 2015 tenancies as detailed in this article.
Update 25 June 2021: Minister v Hathaway & Anor [2021] EWCA Civ 936 (23 June 2021) has confirmed the EPC, gas safety and how to rent guide are not required to be given before serving a section 21 where the tenancy was granted before 1 October 2015.
I would advise any landlord with a pre-1 Oct 2015 AST to serve those documents anyway, in the light of cases such as Caridon v Monty Shooltz and the infamous Superstrike, which have shown that previously unanticipated clauses in legislation can have devastating consequences!
I have to say I disagree on the requirement to use Form 6A (the prescribed s.21 notice). The AST Prescribed Info Regulations amend the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 to specify Form 6A, without limitation to post 1 Oct 2015 tenancies. (Even if the amendment does appear in Regulations that say the regs apply to post 1 Oct 2015 tenancies only). My reasoning is in the comments here – https://nearlylegal.co.uk/2018/09/autumn-mellow-fruitfulness-and-new-section-21-rules/
We agree that that may be the case but in our view, there’s no reason not to use the prescribed form 6A especially now the requirement to expire the notice after the last day of a period of the tenancy is gone. Having a saving clause was the only real benefit of using a bespoke form.