Section 21 valid?

System

G_M wrote: »

Thanks.
Do you have a reference by any chance?

received this from one of the local solicitors I deal with, having also discussed this with him he says that there is some confusion with the legislation as some aspects aren't as clear as they should be, so to avoid any comeback treat all tenancies as if they are post 2015 when serving notices.




28 September 2018

New Section 21 Rules










On 1 October 2018, the Deregulation Act 2015 comes into force, affecting all assured shorthold tenancies that commenced before 1 October 2015. These provisions are somewhat complex, and may yet be subject to further change. But this is currently how it stands:-
Section 41 of the Deregulation Act applies sections 33 to 40 of the Act to all assured shorthold tenancies from 1 October 2018, where previously it was only new or renewal tenancies commencing on or after 1 October 2015 that were caught. How those sections will apply (or not) is varied, particularly in relation to the Regulations giving effect to those sections.
Prescribed section 21 Notice
The prescribed form 6A will have to be used for all section 21 notices served after 1 October 2018, regardless of start date of the tenancy.
Limited validity of section 21 notice
Whilst the 'can't be served within first four months of a tenancy' provision is somewhat idle for pre 1 October 2015 tenancies, the 'use it or lose it' provisions will apply. Possession proceedings will have to be issued within 6 months of the date of service of a section 21 notice, after which the notice will become invalid.
Where a s.21 notice is served before 1 October 2018 but expires after that date it is unclear, but a strict reading of s.36 Deregulation Act and the new s.4D Housing Act 1988 would suggest it might. So landlords and agents should assume that the 6 month time limit does apply - to notices served now, or indeed any notices served after 1 August 2018.
Retaliatory Eviction
The retaliatory eviction provisions will apply to all assured shorthold tenancies from 1 October 2018. This means that:

1. No section 21 notice can be served within the six months after a Local Housing Authority has served an Improvement Notice or an Emergency Remedial Notice.
2. Where a tenant has made a written complaint about conditions of the property, the landlord has failed to respond or rectify, but has served a section 21 notice, and the Local Housing Authority has subsequently served an Improvement Notice or Emergency Remedial Notice, then the section 21 notice is invalid (at any time prior to the making of a possession order).

Again, transitional effects are not clear for pre 1 October 2015 tenancies. What, for example, if an Improvement Notice was served on July 2018? On a strict reading of s.33 Deregulation Act, it would appear that the 'ban' on a s.21 notice would then apply from 1 October 2018 to 31 January 2019.
Similarly, in scenario (b) above, if a s.21 notice was served before 1 October 2018, but a relevant Notice was served by the LHA after 1 October 2018, that would possibly invalidate the s.21 notice. This is complicated by the required previous steps (tenant notice, service of s.21 etc.) possibly occurring before s.33 Deregulation Act has effect for pre 1 October 2015 tenancies. Again, any court decisions will come too late on this to be of any guidance, so our suggestion to landlords would be to presume that an LHA notice served after 1 October 2018 would invalidate a s.21 if the tenant had followed the requirements on notice of a problem.
Assorted prescribed information and documents
For post 1 October 2015 tenancies (including renewal tenancies) no section 21 notice can be served unless the tenant has been provided with:

1. The Energy Performance Certificate (possibly excepting HMOs - this is contentious)
2. The gas safety certificate (where necessary - and, as things stand this probably must have been served at the start of the tenancy (Caridon Properties Ltd v Monty Schooltz), and the tenant has to be given any subsequent 12 month inspection certificate after that.
3. The 'How to Rent' Guide.

What will this mean from 1 October 2018?
As things currently stand, for pre 1 October 2015 tenancies, none of these requirements will apply. While sections 38 and 39 Deregulation Act 2015 (prescribed information and prescribed legal requirements) will apply for pre 1 Oct 2015 tenancies, they will have no content - the prescribed information and requirements are to be set out in regulations and, as it currently stands, the only regulations are The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. These specify that the regulations only apply to tenancies starting on or after 1 October 2015 (and not statutory periodic tenancies starting on or after 1 October 2015 from a pre 1 Oct 2015 fixed term either).
So, unless there are further or amended regulations, there will be no requirement to have to provide an EPC or How to rent Guide for a pre 1 Oct 2015 tenancy in order to be able to serve a s.21 notice.
The requirement for a gas safety certificate before occupation and within 28 days of the 12 monthly check is, of course, set out in the gas safety regulations. But whilst not meeting that requirement may give rise to a criminal prosecution, it does not invalidate a s.21 notice for a pre 1 October 2015 tenancy. At least as things now stand.
Conclusion
The 'transition period' with s.21 notice served before 1 October 2018 is particularly complicated. There may also be new regulations on prescribed and required legal information, though none have been laid before Parliament yet.
The appropriate action for landlords and agents is to presume that the transitional period applies retrospectively, as outlined above. We assume that there will be challenges along those lines. Any court decisions on the transition arrangement will arrive far too late to be of practical use.
But we can be reasonably sure that there will be a lot of landlords (and indeed agents), who miss the 1 October 2018 date, when all ASTs will be caught by the Deregulation Act changes.

Hope663

* when original tenancy started
15/03/2013

* if/when latest fixed term contract/renewal was signed
After 18months the LL told me to pay rent to him directly, but no other contract was ever signed to date.

* when S21 was served
5/06/2018

* when council enforcement notice was served on LL
I informed the Council on 03/08/2018 and the letter from them followed a week later

* when work started
16/08/2018

* when work finished
04/10/2018 (was the date of the final builder who siliconed the bath sink etc, but before the gas safe, electrical wiring etc, which was done in augast)

* whether work included gas report
yes. 19/08/2018

* when court possession papers were received
Claim for possession of property located in England (accelerated procedure)(assured shorthold tenancy) has Issue Date 05/10/2018

* when court date is

I dont know


Sorry for my absence yesterday, I am having a awful time this end. Also i am due to have surgery on the 29th of November and am very concerned that i will leave the hospital unable to access the home i left.


I guess i have to return these documents by a certain date? In the statments it says:

Unfortunately, there was a lapse of about 6 months between gas safety records, but as this is an old tenancy granted in 2013 I have been advised by my solicitors that the new regulations do not apply to this tenancy in relation to section 21 notices.


Thank you gall for reading

System

Hope663, Read my post just above your last one especially the first sentence as this is relevant to your circumstances

Hope663

Thank you all for your comments, so the following invalidates the sec 21notice that was served without gas safe etc:



"S21 has to be unequivocal. By offering to withdraw it under condition, the LL has made it very much equivocal, and therefor invalid".


and



"On 1 October 2018, the Deregulation Act 2015 comes into force, affecting all assured shorthold tenancies that commenced before 1 October 2015".


sorry i am in a mess.



Going by the dates above and that it is an 'accelerated procedure', What dates rooughly do you think that bailiffls will turn up making me homless? Thanks

Nearly_Legal

Hi

That pre/post 1 October 2015 choice is the very first box on the flowchart. Pre 1 Oct 2015 skips the Gas safety Cert/EPC/How to Rent guide requirements.

I really, really would not have made that error, given that I was one of the people raising the question of the 2015 AST regulations and their effect with MHCLG.

Nearly_Legal

Can I ask who sent you that? It appears to be a lightly but badly edited copy of my post on Nearly Legal here: https://nearlylegal.co.uk/2018/09/autumn-mellow-fruitfulness-and-new-section-21-rules/

Using it without attribution is very poor form (and against our conditions.)

Simonr66 wrote: »

received this from one of the local solicitors I deal with, having also discussed this with him he says that there is some confusion with the legislation as some aspects aren't as clear as they should be, so to avoid any comeback treat all tenancies as if they are post 2015 when serving notices.




28 September 2018

New Section 21 Rules










On 1 October 2018, the Deregulation Act 2015 comes into force, affecting all assured shorthold tenancies that commenced before 1 October 2015. These provisions are somewhat complex, and may yet be subject to further change. But this is currently how it stands:-
Section 41 of the Deregulation Act applies sections 33 to 40 of the Act to all assured shorthold tenancies from 1 October 2018, where previously it was only new or renewal tenancies commencing on or after 1 October 2015 that were caught. How those sections will apply (or not) is varied, particularly in relation to the Regulations giving effect to those sections.
Prescribed section 21 Notice
The prescribed form 6A will have to be used for all section 21 notices served after 1 October 2018, regardless of start date of the tenancy.
Limited validity of section 21 notice
Whilst the 'can't be served within first four months of a tenancy' provision is somewhat idle for pre 1 October 2015 tenancies, the 'use it or lose it' provisions will apply. Possession proceedings will have to be issued within 6 months of the date of service of a section 21 notice, after which the notice will become invalid.
Where a s.21 notice is served before 1 October 2018 but expires after that date it is unclear, but a strict reading of s.36 Deregulation Act and the new s.4D Housing Act 1988 would suggest it might. So landlords and agents should assume that the 6 month time limit does apply - to notices served now, or indeed any notices served after 1 August 2018.
Retaliatory Eviction
The retaliatory eviction provisions will apply to all assured shorthold tenancies from 1 October 2018. This means that:

1. No section 21 notice can be served within the six months after a Local Housing Authority has served an Improvement Notice or an Emergency Remedial Notice.
2. Where a tenant has made a written complaint about conditions of the property, the landlord has failed to respond or rectify, but has served a section 21 notice, and the Local Housing Authority has subsequently served an Improvement Notice or Emergency Remedial Notice, then the section 21 notice is invalid (at any time prior to the making of a possession order).

Again, transitional effects are not clear for pre 1 October 2015 tenancies. What, for example, if an Improvement Notice was served on July 2018? On a strict reading of s.33 Deregulation Act, it would appear that the 'ban' on a s.21 notice would then apply from 1 October 2018 to 31 January 2019.
Similarly, in scenario (b) above, if a s.21 notice was served before 1 October 2018, but a relevant Notice was served by the LHA after 1 October 2018, that would possibly invalidate the s.21 notice. This is complicated by the required previous steps (tenant notice, service of s.21 etc.) possibly occurring before s.33 Deregulation Act has effect for pre 1 October 2015 tenancies. Again, any court decisions will come too late on this to be of any guidance, so our suggestion to landlords would be to presume that an LHA notice served after 1 October 2018 would invalidate a s.21 if the tenant had followed the requirements on notice of a problem.
Assorted prescribed information and documents
For post 1 October 2015 tenancies (including renewal tenancies) no section 21 notice can be served unless the tenant has been provided with:

1. The Energy Performance Certificate (possibly excepting HMOs - this is contentious)
2. The gas safety certificate (where necessary - and, as things stand this probably must have been served at the start of the tenancy (Caridon Properties Ltd v Monty Schooltz), and the tenant has to be given any subsequent 12 month inspection certificate after that.
3. The 'How to Rent' Guide.

What will this mean from 1 October 2018?
As things currently stand, for pre 1 October 2015 tenancies, none of these requirements will apply. While sections 38 and 39 Deregulation Act 2015 (prescribed information and prescribed legal requirements) will apply for pre 1 Oct 2015 tenancies, they will have no content - the prescribed information and requirements are to be set out in regulations and, as it currently stands, the only regulations are The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. These specify that the regulations only apply to tenancies starting on or after 1 October 2015 (and not statutory periodic tenancies starting on or after 1 October 2015 from a pre 1 Oct 2015 fixed term either).
So, unless there are further or amended regulations, there will be no requirement to have to provide an EPC or How to rent Guide for a pre 1 Oct 2015 tenancy in order to be able to serve a s.21 notice.
The requirement for a gas safety certificate before occupation and within 28 days of the 12 monthly check is, of course, set out in the gas safety regulations. But whilst not meeting that requirement may give rise to a criminal prosecution, it does not invalidate a s.21 notice for a pre 1 October 2015 tenancy. At least as things now stand.
Conclusion
The 'transition period' with s.21 notice served before 1 October 2018 is particularly complicated. There may also be new regulations on prescribed and required legal information, though none have been laid before Parliament yet.
The appropriate action for landlords and agents is to presume that the transitional period applies retrospectively, as outlined above. We assume that there will be challenges along those lines. Any court decisions on the transition arrangement will arrive far too late to be of practical use.
But we can be reasonably sure that there will be a lot of landlords (and indeed agents), who miss the 1 October 2018 date, when all ASTs will be caught by the Deregulation Act changes.

G_M

I suspect the OP has resolved this one way or another - the thread is about 3 months old.

Comms69

Please can you get verified if you are from the Nearly Legal team.

Nearly_Legal

G_M wrote: »

I suspect the OP has resolved this one way or another - the thread is about 3 months old.

Sure - I was responding to other comments, not the OP's situation.

Nearly_Legal

Comms69 wrote: »

Please can you get verified if you are from the Nearly Legal team.

No idea how...

But I am definitely me.