This post will focus on the use of section 21 form 6A for assured shorthold tenancies (AST) that started or were renewed for a new fixed term prior to 1 October 2015. For ASTs which commenced or were renewed post 1 October 2015, please see here.
Following the introduction of the Deregulation Act 2015 there effectively became 2 regimes for serving s21 notices. The regime you adopt depends on the commencement date of the AST and the date to keep in mind is the 1 October 2015.
Tenants are served with a s21 notice when landlords want to end their AST either during the fixed period where there is a break clause or periodic tenancy. Where such an AST commenced, or was renewed prior to 1 October 2015, the landlord can serve the ‘old-style’ s21 (1)(b) or (4)(a), whichever is applicable, they are no doubt familiar with already. A s21 form 6A is not actually required for an AST which commenced or was renewed prior to 1 October 2015.
However, having 2 regimes is not ideal and many would prefer to use the same s21 notice style, whether the AST began pre or post 1 October 2015. Under the old regime s21 (1)(b) and (4)(a) notices do not need to be in any prescribed form. They must be in writing and give not less than two calendar months’ notice. In addition, a s21(4)(a) notice must expire at the end of a period of the tenancy and give not less than one period of the tenancy’s notice, such as a quarter where rent is paid quarterly. Form 6A is clearly ‘in writing’ and so it will meet that requirement. In addition, it will also be giving two months’ notice plus allow time for service. For these two reasons, it is perfectly acceptable to use a form 6A, even for ASTs using the ‘old-style’ s21 regime. In further support of this position, the form 6A explicitly states on the first page that “it may nevertheless be used for all ASTs”.
However, it is important to bear in mind that many of the notes on the front of the form 6A will not apply. So where the AST commenced or was renewed pre 1 October 2015 under the ‘old’ regime you can:
- serve a s21 in the first 4 months of the tenancy (NB. Under the ‘old’ regime the court cannot make a possession order in the first 6 months of the AST);
- serve a s21 for ‘retaliatory evictions’; and
- serve a s21 in the absence of an EPC, gas safe certificate and ‘How to Rent Guide.’ But we strongly recommend that these documents, are sent to the tenant prior to serving the form 6A.
Furthermore, we have come across instances where landlords or their agents have instructed us to serve a form 6A but have failed to retain any evidence that the deposit prescribed information was served within 30 days of the commencement of the AST. In this instance, we again recommend that the prescribed information is sent to the tenant again prior to serving form 6A and legal advice sought at the earliest opportunity.
Finally, if you serve a form 6A for a tenancy which has been a periodic AST from the beginning, in relation to an s21 (4) (a), you will need to comply with the requirement that it ends at the end of a relevant period as this will still apply.
Readers are reminded that from 1 October 2018 the ‘old’ style Section 21 (1) and (4) notices will no longer be valid and all ASTs regardless of start date, will need to follow the new regime of s21 form 6A.