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New Prescribed Section 21 Notice is published

Hot on the heels of the smoke alarm debacle new regulations have been published prescribing the form for a section 21 Notice which must be used from 1st October 2015. (The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. 

As the name suggests these only apply to England. We think the idea of a prescribed form is a good one as it will help avoid arguments over the wording of the section 21 Notice. Obviously it is concerning that there is such a short lead in time although we have been expecting the same for some months now. For most agents completing the form should cause little difficulty, particularly for those used to giving old style Section 21 notice.

The regulations do however refer to three, in effect, new requirements for service of a valid section 21 Notice. The Landlord or Agent will need to show that the EPC and Gas Safe Certificate was given to the Tenant. Practically we would suggest that additional copies probably should be served with the Section 21 Notice, thereby saving arguments. Agents will no doubt wish to draw this to Landlords attention and make clear without these documents they will not be able to use the non-fault Section 21 Notice.

Also there is an entirely new requirement. At the start of each tenancy (including renewals) you will need to serve “How to rent: the checklist for renting in England”. This will only be available in electronic form on the Gov.uk website and Landlords and Agents will be expected to download and print off this 8 page document for each tenancy.   As with prescribed information it is important agents can prove this was given although again you may wish to serve a further copy with any notice to avoid issues being raised. Plenty to look at and certainly going forward we expect the issuing of accelerated possession proceedings will be more difficult given the extra hoops required to prove which will inevitably lead to further changes to the relevant court forms.

The Regulations apply in their entirety only to ASTs that are granted on or after the 1 October 2015, but subject to section 4, which provides that the  new form must be used. Therefore we advise that the new form be used for all notices served as soon as the Regulations come into force, i.e. 1 October 2015.

Finally, we comment on the note 1 on the form itself, which seems to be intended to help people give the correct date for expiry. First the note advises the landlord to allow two extra days for service, without advising them to check the terms of their tenancy agreement, or to allow for weekends and public holidays.

Secondly the note refers to serving notice on a statutory periodic tenancy under s21(4). Following the rule in Spencer v Taylor   notice on  a statutory periodic tenancy may be given under section 21 ( 1) following the expiry of the fixed term. Section 21(4) applies where there has never been a fixed term, e.g. a contractual periodic tenancy from the outset, or where the term is expressed at the outset to continue on a contractual periodic basis, but neither of these are statutory periodic tenancies. The note does not make it clear that although a notice served under s21 (4) may not expire earlier than a notice to quit could,   a statutory quarterly  periodic tenancy ( under the current interpretation of the Housing Act 1988) may, in our view,  be brought to an end by giving  two months’ notice under Section 21 ( 1).

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