As all landlords will be aware the rules relating to the obtaining of possession via the Section 21 (S21) route for a tenancy granted or renewed post 1 October 2015 have changed.
Not only are landlords having to serve a new form of S21 many landlords are now serving the new Notice not realising that they may be barred from doing so!
A quick recap of the requirements for landlords post October 2015 – at the start of the tenancy the landlords must provide the EPC for the property, the current gas safe certificate (if the property has gas appliances/heating), the latest version of the Government’s How to Rent leaflet and in addition if a deposit has been taken the requirements for deposit protection must also be dealt with.
For tenancies granted since 1 October 2015, a S21 may not now be served during the first four months of the tenancy.
So what does this mean for landlords when they come to seek possession via the S21 route?
If they have not carried out all of the above requirements, they are now barred from even serving a S21. This means that if their tenant is not in breach of the terms of the tenancy, they will NOT be able to get possession of their property.
Acting for many landlords myself, I have to go through a checklist each time I am instructed to either serve the S21 or to commence proceedings following expiry of the S21. Many landlords have done either none or some of the above requirements and I am having to provide advice that the landlords do not want to hear.
What are the implications?
If I am instructed at the pre-serving of Notice stage then matters can to some extent be remedied BEFORE the S21 is served. Whilst that would not alleviate the landlord of any of the other legislative penalties for non-compliance of the requirements, it would at least mean they could serve the S21. My advice is to ensure all the requirements have been met prior to serving the S21 and that proof of service is retained by the landlord/landlord’s agent.
If I am instructed AFTER the S21 has expired, then it is a case of having to advise whether or not the landlord can take the proceedings based on the “evidence” I am provided with. After the S21 has expired it is too late for the requirements to be remedied as the new provisions require all of these to be done BEFORE a landlord may serve a S21.
At that point all I can do is advise that they either:
- (a) start the termination process again, after carrying out the requirements, meaning the obtaining of possession is delayed by a further 2 months or
- (b) that they take their chances at Court of the tenant filing a defence to get the proceedings discontinued due to the requirements not being carried out.
Is scenario (b) likely to happen?
The short answer is yes!
I know a case where the tenant defended on the basis that they had not been provided with the gas certificate for the property and that they had not been provided with the right version of the How to Rent leaflet when the tenancy became periodic. At Court the matter did not go before the Judge to be argued, as the tenant was represented by the local CAB and a deal for a possession order was agreed between the parties. It was however a costly lesson for the landlord as although they got a possession order, the legal process ended up costing them more in legal fees than originally anticipated.
This is not helped by changes to the Claim Form to start the Court proceedings. This has gone from 4 pages to 7 pages with a string of questions the landlord must answer and provide proof that the requirements have been complied with.
Again is this likely to cause a problem? The short answer is yes, if the landlord answers the questions but does not have the evidence, this can be challenged by a clever tenant who will say they were not served with these documents. It is then up to the landlord to prove to the Court that they have complied.
ADVICE TO LANDLORDS
My advice to landlords and their agents is before you serve a S21 in relation to a post October 2015 tenancy, that a thorough review of the requirements is carried out and you can prove all have been done in case you are challenged at Court. If you have complied but cannot prove this then as a belt and braces approach my advice would be to re-serve all the documentation and keep copies of the documents served as evidence.
This may seem like a lot of work but it will save you a lot of time and legal costs if you are able to produce this to the Court if challenged by your tenants.
To make life even easier make sure you/your letting agents deal with it all properly at the start of the tenancy. Keep a precedent checklist that you can tick off to show you have done it all and get the tenants to sign to say they have received the documents and keep a duplicate set of the documents with the checklist. Put it all away safely and then when it comes to terminating the tenancy you already have your evidence.
If landlords or their letting agents are in any doubt as to whether or not they should serve the S21 and whether their evidence is good enough, I would be happy to review the documents and provide advice.
For further information contact Sarah Woolnough on 01227 763939.
Whilst every care has been taken to ensure the accuracy of this blog at the time of preparation, it is not intended to be a substitute for legal advice. Specialist legal advice should always be sought before taking, or refraining from taking, any action.