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Section 21, a review after the Deregulation Act 2015

Under Section 21 of the Housing Act 1988 (as amended by the Housing Act 1996 and 2004) a landlord has a legal right to recover possession of the property at the end of an assured shorthold tenancy provided that he follows the correct procedure.

The Deregulation Act 2015 has made some significant changes to the issuing of Section 21 notices and as a result we often get asked questions surrounding these changes from agents who are still familiarising themselves with the new requirements.

First things first the changes only apply in England and only apply to tenancies which commenced or were actively renewed for a new fixed term on or after 1 October 2015.

Therefore there are effectively two Section 21 regimes in operation In England at the moment:

– The original pre Deregulation Act 2015 model which will apply to older tenancies; and

– The new post Deregulation Act 2015 model which is slowly taking over as tenancies are renewed and new tenancies are created.

With the changes made by the Deregulation Act 2015 a section 21:

• Cannot be served within the first 4 months of the original tenancy;

• Cannot expire during the fixed term unless it is making use of a break clause;

• Cannot be served in the 6 months following the council issuing an Improvement Notice or carrying out emergency remdial work unless the first tier tribunal quashes the Improvement Notice or states the emergency works were not required;

• Is only valid for 6 months from the date it is served. In other words, for a standard 2 month Section 21 notice a Landlord will have 4 months from the date of expiry to issue proceedings;

• Cannot be validly served If the deposit has not been properly protected or prescribed information not been provided – this is one of the most common issues we face here at PainSmith!

• Cannot be validly served where the tenant was not given a valid EPC, valid Gas Safety certificate or How to Rent Guide.

Prescribed Form
The Deregulation Act 2015 also introduced a prescribed form of the Section 21 notice. A copy of the form can be found here.

From 1 October 2018, there will no longer be two models of the Section 21 process and the new post Deregulation Act 2015 model will apply to all tenancies regardless of when they started.

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