Is it now easier to remove a tenant?

Well, possibly. That should not be interpreted as agents wanting to chuck out respectable tenants who meet and frequently surpass all the criteria in the ‘Ideal Tenant’ list being given far greater liberty to do just that.

Section 21 of the Housing Act 1988 lies at the very heart of modern tenancy law in England and Wales.  A notice validly served under section 21 will force a court of law to grant a possession order without the landlord having to establish a “ground” for possession.  Under the Rent Acts (applying to tenancies granted before 1989) tenants enjoyed strong security of tenure and could only be removed on limited grounds.
New provisions enshrined in the Deregulation Act 2015 (am I the only one to spot the irony in the title?), will impose restrictions on a landlord’s ability to give a section 21 notice to end a tenancy.  Before looking at the detail, it is important to make the point that (with one exception referred to below) the new rules will only apply to new assured shorthold tenancies (ASTs) entered into on or after 1st October 2015.
The changes may be summarised as follows:

Timing restrictions

For tenancies which first begin on or after 1st October 2015 it will not be possible to give a section 21 notice in the first four months of the tenancy.  In the case of replacement tenancies (new tenancy with same parties and same premises as previous tenancy), the relevant period is four months from the day on which the original tenancy began.

The new provisions also stipulate that, once a section 21 notice has been given, possession proceedings must be commenced (where appropriate) within six months of the service of the section 21 notice.  In other words, “use it or lose it”.  For notices given under section 21(4)(a) – relevant in the case of statutory periodic tenancies – the relevant period is four months from the date of expiry of the notice.

Relaxation of date requirement in section 21(4) notice

This is a somewhat technical change but it may come as a relief to those landlords and letting agents who struggle to count days correctly.  Don’t laugh, there are more than you think.  Under the new rules, the need for a landlord to specify the last day of a period of the tenancy as the date on which the tenancy comes to an end will be removed.  However, while this certainly removes an element of precision from the wording of the notice, landlords and letting agents should still be aware that the date specified in the notice must still be (a) not earlier than 2 months from the date on which the notice is given and (b) not earlier than the earliest date on which the tenancy could be brought to an end under the traditional common law rules (by means of a notice to quit).

Retaliatory eviction

This is the area of new law likely to cause the greatest amount of  gritting of teeth and imprecations to inflict damage upon one’s fellow man.  For tenancies which first commence after 1st October 2015, the service of any improvement notice under the housing health and safety rating system by the relevant local authority or the carrying out by them of any emergency remedial action will mean that a landlord will not be permitted to give a section 21 notice for six months.  That deals with the situation after an improvement notice has been served.  But what about the situation where, before any involvement by the local authority, the tenant has made a complaint to the landlord or his letting agent?

Where a tenant makes a complaint about the condition of a property in writing, the landlord will have to respond within 14 days in writing setting out what he intends to do about it and what the timeline for doing this is.  If the landlord (a) fails to reply or (b) replies by serving a section 21 notice or (c) gives a reply that is inadequate, then the tenant may complain to the local authority who must inspect the property.  If the local authority then serves an improvement notice or carries out emergency remedial action, any section 21 notice already served will be rendered ineffective and no further notice can then be served for six months.  This lacks clarity in a number of respects and it remains to be seen how it will work in practice.

The following potential problems are immediately obvious:

Local authorities are likely to be faced with a substantial increase in demands to carry out inspections and one can imagine that they might not be able to cope, at least not within a reasonable timeframe.

The courts are likely to have to deal with more defences to section 21 claims and this could substantially impact on the accelerated possession process.  The pressure on courts to deal with extra hearings could, it is thought, cause the possession process to become untenable.

Landlords are likely to find themselves facing many more complaints about condition.  This is not in itself a criticism of the new regime but it seems inevitable that some complaints will be more tactical than genuine.  Put less politely, the ‘professional’ chancers will hold their form and run up to their handicap mark.  If the simple method of ending a tenancy by giving a section 21 notice becomes problematic because of a complaint made by the tenant, landlords in future faced with a tenant who is not paying rent might be forced down the route of using a section 8 notice and establishing a statutory ground for possession.  At Cheshire & Co we are well schooled in preparing the paperwork for section 8 notices and include this in the service that we provide to our landlords.  Many agents though would not touch it with the proverbial barge pole covered in something altogether unpleasant, thus for the landlord who has a property let through such agents, what previously could be a simple and cheap process instigated without the help of a lawyer now potentially becomes a much longer and more costly exercise.

This is a not insubstantial body of new regulations to get to grips with.  In the interests of public service broadcasting, may I offer some advice for serving a section 21 notice:

  • Get the right date-on everything-too many notices have found themselves in the bin because of a cock-up with the calendar.  The two months’ notice is from the date the tenant receives the notice, so always give an extra few days.
  • Do not send recorded delivery as they may refuse to sign for it and when they do sign for it, the date of the signature may render the notice invalid.
  • You will have to show the court proof of service.  Always get the proof of posting as the courts will accept this.
  • If there are two tenants or joint tenants, send one joint notice in both names and one for each individual tenant.  A judge will need some convening that the dog ate all of them.
  • If you are hand delivering the notice, put the means of the delivery in the actual letter and ensure that you get a picture of you pushing it through the letter box, together with a signed witness statement from the person watching/photographing you doing it.

If a tenancy has been conducted correctly by all parties, then the end of the tenancy will have been discussed and nothing will come as a surprise.  If there have been ‘challenges’ throughout the tenancy, the notices and the legislation surrounding them are there to protect all parties.  As a letting agent, you will get the property back…eventually…