Five Warnings for 2018 – #4 Pre-October 2015 Tenancies

Five Warnings for 2018 – #4 Pre-October 2015 Tenancies

11:55 AM, 21st December 2017, About 6 years ago 3

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A short series from landlord & tenant lawyer Tessa Shepperson on things you need to watch out for.

On 1 October 2015 new rules came in which affected landlords use of the all-important section 21 notices for properties let on assured shorthold tenancies in England (the new rules do not apply in Wales).

A section 21 notice is a notice which entitles a landlord to obtain a court order for possession against a tenant, even if the tenant has done nothing wrong, if he has failed to move out of the property after the expiry of the notice period.

However, these new rules only affected tenancies which were created or renewed, after the law came into force.

Now, on 1 October 2018, these rules will become retrospective as they will apply to ALL assured shorthold tenancies, whenever they were created.

One rule to rule them all

For us advisers, it will be a lot easier after October.  At the moment, we have two sets of rules to consider.  It will be much more straightforward when there is just one set of rules which apply to everyone.

Landlords of older tenancies however will need to ensure that they are compliant with the new rules or section 21 will not be available for them.  So, let’s take a look at this.

The Section 21 Preconditions

The existing pre-conditions of compliance with the deposit and HMO licensing rules remain.  However, there are the following new rules:

  • Compliance with the gas regulations
  • Service of an EPC (where required), and
  • Service of the governments ‘How to Rent’ booklet.

There is no problem with the ‘How to Rent’ booklet.  This can be downloaded from here and can be served at any time.

However, there may be a problem for landlords of properties where tenants will not let them in to do the gas safety inspection, or (if required) an EPC.

At present landlords of these properties are able to evict under section 21 but this will not be possible after 1 October.

Other new rules

These are:

  • The anti-retaliatory eviction rules
  • The new time limits and
  • The new prescribed form

Most decent landlords won’t have any problem with the anti-retaliatory eviction rules as these only come into effect if the Local Authority has served an improvement notice.  Which they are only going to do for serious problems where landlords have refused to carry out works voluntarily.

The effect of the other two changes are that existing old style section 21 notices will become invalid after 1 October.

What you need to do now

Check what properties you own or manage where the tenancy (or renewal) pre-dates 1 October 2015, and make a list of them.

For each of these you need to check:

  • Whether an EPC is needed an if so whether one has been served, and
  • Whether (if the property has gas) a gas safety certificate has been served.

As these are the two issues most likely to cause problems.

If you have a property where, for example, tenants are not letting you in to do the gas safety check, then you should consider now whether you should evict.  If you are going to evict, it is best that this is started soon, so the process is complete well before the new rules come into effect.

After 1 October 2018 it will be too late to do anything about it and you will be subject to the same rules as post 1 October 2015 tenancies.

Tessa Shepperson

Tessa is a lawyer specialising in landlord & tenant law and runs the popular Landlord Law online service for landlords.

NB Get more help in Tessa’s January Mystery Box Giveaway

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2:15 AM, 22nd December 2017, About 6 years ago

Thank you Tessa, for your valuable information for us ordinary landlords, now, what if a tenant simply denies having received a copy of an EPC or a gas safe record? or right to rent booklet, do we protect ourselves by some means such as making a video recording of handing over these papers over to tenants, or if they are cooperative ask them to sign a statement indicating they have received these documents. And what if the pre October 2015 tenancy has rolled into periodic tenancy now, do we or can we not give a new AST now with all required paperwork, which obviously would mean that tenancy will be secured for at least 6 months and we cannot serve our tenants a notice before 4 months have lapsed and then we would have to wait two further months before any court action can be taken if a tenant has not moved out by the end of their AST term.

Tessa Shepperson

8:18 AM, 24th December 2017, About 6 years ago

It is always a good idea to serve important documents in a way that can be proved.

Getting the tenant to receipt and date a copy when serving by hand is one way, getting someone independent to witness service, such as a neighbour, is another. I have a long article on my Landlord Law site about service of documents which has more guidance.

There is no need to get the tenant to sign a new fixed term tenancy - unless you want to of course. For example, if you want to increase the rent.

Michael Barnes

1:08 AM, 24th January 2018, About 6 years ago

You say that we have to serve the "How to Rent" guide for all tenancies.

It is my understanding that the version to serve is the one that applied on the first day of the tenancy.
I have a tenancy that started before the guide came into existence, so which version do I serve?

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