As you are undoubtedly aware, there have been recent changes to the notice period you have to give when serving either a section 21 (Form 6A) or a section 8 (Form 3) notice under the Housing Act 1988. The changes have been put in place by the Coronavirus Act 2020 and are currently set to be active until 31 March 2021. Amended versions of the Notices will be available from our website from time to time.
Additionally you will always be able to locate the most up to date version of either Notice on the gov.uk website (https://www.gov.uk/guidance/assured-tenancy-forms). Government from time to time do amend Notices, giving little advance warning. Therefore, PainSmith advise all agents to check the government website regularly for amendments and alterations.
This blog post will highlight the key changes and requirements that must now be considered.
It is important to note that notices which have already been served citing three months’ notice period do not have to be served again, provided the date of service precedes 29 August 2020.
From 29 August 2020, Landlords must give six months’ notice when serving a section 21 notice. This supersedes any Break Clause including in the Tenancy Agreement. Meaning that if the Tenancy Agreement has a Break Clause saying the Landlord can end the tenancy by giving two months’ notice, they will still have to give the 6 months’ notice as required by Form 6A, the section 21 notice.
Previously, section 21 notices were only granted a shelf-life of six months, this has also been amended to reflect the recent extension to notice periods required. A section 21 notice will now remain valid for 10 months from the date it is served.
The same rules still apply in relation to the grounds on which you cannot serve a section 21 notice. Namely:
• It is less than 4 months since the tenancy started.
• The property is a house in multiple occupation and requires a licence under Part 2 of the Housing Act 2004 and that licence has not been obtained. Unless a temporary exemption applies, an application for a licence has been made and is still effective or the landlord has notified their local authority that they are seeing a temporary exemption and that notification is still effective. (This applies even if a licence application or notification could not be made due to COVID-19 outbreak).
• The property is other residential accommodation and requires a licence under Part 3 of the Housing Act 2004 and that licence has not been obtained. Unless a temporary exemption applies, an application for a licence has been made and is still effective or the landlord has notified their local authority that they are seeking a temporary exemption and that notification is still effective. (This applies even if a licence application or notification could not be made due to COVID-19 outbreak).
• The tenancy was granted on or after 6 April 2007 or is a statutory periodic tenancy that arose on or after that date and the landlord has not complied with the relevant tenant deposit protection legislation.
• The council has served an improvement notice or an emergency remedial notice in the last 6 months.
• The landlord has not repaid any unlawful fees or deposits (prohibited payments) they charged the tenant – read the guidance for landlords on the Tenant Fees Act 2019.
There is also still the requirement to provide the tenant with a valid EPC, Gas Safety Certificate and How to Rent Guide for the property prior to serving a section 21 notice; since 1 June 2020 you will also need to provide a copy of the Electrical Safety Certificate to the tenant. In addition to complying with the deposit scheme rules and providing the tenant with a copy of the Prescribed Information relating to the deposit within 30 days of registering it with one of the approved schemes.
In addition to the section 21 notices, a section 8 notice must also give a notice period of six months’ apart from in certain circumstances. For a section 8 notice, you must clearly state under which grounds you wish to rely upon for possession, below is an outline of the amendments to each ground:
Mandatory Grounds under which a judge must award possession
• Ground 1 – new notice period of 6 months
• Ground 2 – new notice period of 6 months
• Ground 3 – new notice period of 6 months
• Ground 4 – new notice period of 6 months
• Ground 5 – new notice period of 6 months
• Ground 6 – new notice period of 6 months
• Ground 7 – notice period remains 3 months
• Ground 7a – new notice period of four weeks for a periodic tenancy and one month for a fixed- term tenancy
• Ground 7b – notice period remains 3 months
• Ground 8 – new notice period of 4 weeks where there are at least six months arrears or notice period of 6 months where there are less than 6 months arrears
Discretionary grounds under which it is up to the judge as to whether they award possession
• Ground 9 – new notice period of 6 months
• Ground 10 – same as Ground 8
• Ground 11 – same as Ground 8
• Ground 12 – new notice period of 6 months
• Ground 13 – new notice period of 6 months
• Ground 14 – no notice period required; proceedings can begin immediately once notice has expired
• Ground 14A – notice period of 2 weeks
• Ground 14ZA – notice period of 2 weeks
• Ground 15 – new notice period of 6 months
• Ground 16 – new notice period of 6 months
• Ground 17 – new notice period of 2 weeks
It is important to note that the majority of grounds now require a notice period of 6 months. However, grounds 8, 10 and 11 (which relate to rent arrears) require 4 weeks’ notice for cases where the arrears are at least 6 months. For any notices served where the arrears are less than 6 months, the relevant notice period is six months.
Similarly, where possession is being sought under Ground 7a (serious anti-social behaviour), the notice period has reverted to the original 4 weeks for a periodic tenancy and 1 month for a fixed-term tenancy. In order to bring a claim to court relying on Ground 7a, you will need to show sufficient evidence detailing the tenants’ serious anti-social behaviour. This can be, but is not limited to, Crime Numbers, reports from the Local Authority, witness statements from neighbours, and evidence of confiscation of the tenants’ possessions. Unless you are able to provide such evidence, you will be unable to bring a claim for possession to court citing Ground 7a.
The discretionary Grounds 14, 14A, 14ZA and 17 (nuisance/annoyance/illegal use of the property; domestic abuse; rioting; false statement respectively) have all reverted to their original notice periods. Similar requirements for Ground 7a regarding evidence will also apply here.
Published 1 September 2020