Section21 4a or 6a – What am I missing?

by Readers Question

9:00 AM, 11th April 2019
About A year ago

Section21 4a or 6a – What am I missing?

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Section21 4a or 6a – What am I missing?

I have a tenancy which started in March 2014 and went periodic in September 2014. I have served a section 21 4a notice on my tenant as of February 2019, however I have been told that this is not the correct notice and could be thrown out of court and that following the introduction of the additional legislation to the deregulation bill in October 2018 I should of used a 6a.

The notes on the 6a clearly state that it is not necessary to use a 6a for tenancies before 1st October 2015, although you can use it for any tenancy.

I would of thought the 4a would not be thrown out of court.

Am I missing something here??

Editors Notes:

Notice seeking possession of a property let on an Assured Shorthold Tenancy (Form 6a) >> https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/515661/Notes_to_Form_6A_FINAL.PDF

This form should be used where a no fault possession of accommodation let under an assured shorthold tenancy (AST) is sought under section 21(1) or (4) of the Housing Act 1988.

This form must be used for all ASTs created on or after 1 October 2015 except for statutory periodic tenancies which have come into being on or after 1 October 2015 at the end of fixed term ASTs created before 1 October 2015.

The validity period of this form is six months following the date of its issue unless the tenancy is a periodic tenancy under which more than two months’ notice is required, in which case the validity period is four months from the date the tenant is required to leave.


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Comments

Frederick Morrow-Ahmed

10:37 AM, 13th April 2019
About A year ago

Reply to the comment left by Michael Barnes at 12/04/2019 - 23:34
Gas Safety (Installation and Use) Regulations 1998 as amended.

Unfortunately. This is a pest.

Mike

10:51 AM, 13th April 2019
About A year ago

Micheal, what the Deregulation Act 2015, the new rules started to apply to all new tenancies from 1st October 2015, and later on even older tenancies issued before 1st October 2015 will be required to follow the basics of this 2015 deregulation Act, that means to play it safe issue only the latest form 6A for eviction even for older tenancies.
The Government gave 3 years for older tenancies to be brought up to the same level as the newer ones that sprang on or after 1st October 2015.
Of course, one of the requirements which is the gas safe certificate that must be given to a tenant before he is allowed to move into a property, that part cannot be achieved because no one has invented time machine to go back in time and issue a gas safe certificate before tenants moved in, if we could do that the world would be a completely different place, we would not have the need to take a bad tenant to court to seek a possession order, because you could go back in time and kick the bad tenant out before he even stepped in!
So someone needs to seriously Invent a time machine, its about time someone did just that instead of all these modern gadgets that controls your home automation. yes we need one where we can go back in time, and kick the bad tenant out and still keep the bastards rent, that would be real fun! That is just what I would have liked to do to my bad tenant who owes me 8 months rent!

Michael Barnes

23:47 PM, 13th April 2019
About A year ago

Reply to the comment left by Frederick Morrow-Ahmed at 13/04/2019 - 10:37
"Gas Safety (Installation and Use) Regulations 1998 as amended."

Those say a S21 cannot be issued if GSC not provided?

Where?

Michael Barnes

0:18 AM, 14th April 2019
About A year ago

Reply to the comment left by Mike at 13/04/2019 - 10:51The Deregulation Act says that certain sections came into force for all tenancies at a later date (I think it was 1 October 2018).
The Deregulation Act does not say that a S21 notice is invalid if the Gas Regulation to provide a tenant with a valid GSC before T takes occupation has not been complied with; it says (S38, which added S21A to Housing Act 1988) that a S21 notice is not valid if the LL is in breach of prescribed requirements.
The only applicable prescribed requirements under S21A, afaik, are the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.
Paragraph 2 of those regulations require compliance with paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (requirement to provide tenant with a gas safety certificate), one of which is the requirement to provide the GSC before the tenant occupies the premises.
Paragraph 2 also requires provision of an EPC, and paragraph 3 requires provision of How to Rent.
HOWEVER, Paragraph 1(3) of those regulations states Subject to paragraph (4), these Regulations apply in relation to an assured shorthold tenancy of a dwelling-house in England granted on or after 1st October 2015, so do not apply to pre-October 2015 tenancies. and
Paragraph 1(4) states These Regulations do not apply to an assured shorthold tenancy that came into being under section 5(2) of the Housing Act 1988 on or after 1st October 2015 on the coming to an end of an assured shorthold tenancy that was granted before that date.
THEREFORE paragraph 2 (and others) of the regulations do not apply to a pre-October 2015 tenancy, nor to any SPT arising from such a tenancy; and so a S21 notice is not invalidated for such a tenancy if
- no EPC has been supplied;
- no GSC has been supplied;
- How To Rent has not been supplied.

Mike

8:12 AM, 14th April 2019
About A year ago

Thank you Micheal for clarifying this, appreciate your time and effort in so doing, somehow some of us have been lead to believe that this was not the case, but it seems clear enough now, we have been worried for nothing, I could have given my tenant a S-21 Notice, instead I took the S8 route because I was lead to believe that if a tenant had not been brought up to the new rules after 1st October 2018, (after a 3 year period since the introduction of Deregulation Act 2015)

so this makes it perfectly clear now what you have stated above Micheal, many thanks, I will re-mention that below:

HOWEVER, Paragraph 1(3) of those regulations states Subject to paragraph (4), these Regulations apply in relation to an assured shorthold tenancy of a dwelling-house in England granted on or after 1st October 2015, so do not apply to pre-October 2015 tenancies. and
Paragraph 1(4) states These Regulations do not apply to an assured shorthold tenancy that came into being under section 5(2) of the Housing Act 1988 on or after 1st October 2015 on the coming to an end of an assured shorthold tenancy that was granted before that date.
THEREFORE paragraph 2 (and others) of the regulations do not apply to a pre-October 2015 tenancy, nor to any SPT arising from such a tenancy; and so a S21 notice is not invalidated for such a tenancy if
- no EPC has been supplied;
- no GSC has been supplied;
- How To Rent has not been supplied.

Frederick Morrow-Ahmed

13:12 PM, 14th April 2019
About A year ago

Reply to the comment left by Michael Barnes at 14/04/2019 - 00:18
Michael, I think after 1st October 2018 the Deregulation Act applied to all tenancies, even those granted pre 1st October 2015. Here is Paul Shamplina's blog;
https://www.landlordaction.co.uk/news/gas-safety-certificates-section-21-be-compliant-or-you-may-pay-the-price/

Gas Safety (Installation and Use) Regulations 1998 as amended required the GSC to be served within prescribed time limits and the Dereg Act made this mandatory for a S21 to be valid

Frederick Morrow-Ahmed

14:14 PM, 14th April 2019
About A year ago

Reply to the comment left by Frederick Morrow-Ahmed at 14/04/2019 - 13:12
But this is an extract from SHELTER:

Failure to comply with prescribed legal requirements

This restriction only applies to ASTs granted (or renewed) on or after 1 October 2015. This restriction will not apply to an AST granted before 1 October 2015 that has not been renewed since unless there are further regulations.[17]

A landlord cannot serve a valid section 21 notice where s/he has failed to provide the tenant with a copy of a current:[18]

energy performance certificate (EPC)
gas safety certificate (when required).

The gas safety regulations require that a copy of the gas safety certificate must be provided to an existing tenant within 28 days, however, this time-limit does not apply with respect to compliance with the prescribed legal requirements for the service of a section 21 notice.[19]

It is unclear whether a failure to provide a copy of an EPC or gas safety certificate before the start of the tenancy will invalidate a section 21 notice. Both are required under the respective regulations governing EPCs and gas safety. In a number of (non-binding) county court cases, it was held that failing to provide a copy of a gas safety certificate at the outset of the tenancy invalidated a section 21 notice, even where the certificate was provided later.[20]

It is also unclear whether failure to provide an EPC when granting an AST of a individual room within a house in multiple occupation (HMO) will invalidate a section 21 notice, but this is arguable.

Frederick Morrow-Ahmed

14:27 PM, 14th April 2019
About A year ago

Reply to the comment left by Frederick Morrow-Ahmed at 14/04/2019 - 14:14
This (taken from https://www.landlordsguild.com/how-to-understand-which-section-21-rules-apply-from-october-2018/) again supports Michael's view:

New prescribed section 21 form

This one is less clear. On the one hand, the Act states the new form of notice is to be used for all ASTs from October 2018 but the regulations creating the form states that those regulations apply to ASTs granted on or after 1 October 2015.

Therefore, at the time of writing, it seems that the new prescribed form will not have to be used for tenancies or renewals granted before 1 October 2015.

That being said, because the rule about expiring at the end of a period of the tenancy is being abolished for all ASTs from 1 October 2018 and the time limit rules etc. apply, there appears no reason why the new form shouldn’t be used. There will be no benefit (unlike now) to using an old style form from 1 October 2018. The new prescribed form makes it clear in its notes that it can be used for tenancies prior to October 2015 if a landlord wants to. It just might not be legally required as the rules are currently written.

Compliance with legal requirements before serving a section 21

Again, this one is not clear. The Act states that any prescribed legal requirements made by regulations will apply to all AST’s from 1 October 2018. The regulations specify the legal requirements as being the requirement to provide an EPC and gas safety record. However, those same regulations state that those requirements apply to ASTs granted on or after 1 October 2015.

Therefore, it would seem unless new regulations are introduced or an amendment is made, the requirement to have supplied an EPC and gas safety record will not be necessary to be shown before section 21 can be served unless the tenancy or renewal was granted on or after 1 October 2015.

Frederick Morrow-Ahmed

15:11 PM, 14th April 2019
About A year ago

Reply to the comment left by Frederick Morrow-Ahmed at 14/04/2019 - 13:12
Paul Shamplina may have a commercial reason for obfuscating the issue, being an eviction lawyer. Also, the Monty Shoolz case relates to a post 1 October 2015 tenancy.

Reading various other opinions, I think Michael is right and has done an excellent analysis of the (very confusing) legal situation. For all our sakes, let's hope this is the case.

Mike

18:19 PM, 14th April 2019
About A year ago

It could be argued, that landlords were given 3 years from 1st October 2015 till 31st September 2018 to bring all pre-October 2015 tenancies up to date by giving tenants a GSC and EPC in their hands, otherwise a Section 21 Notice may not be valid, who can argue this, different judges can interpret the law differently, this is why we have an appeal system and some judgements can be challenged and escalated to higher courts.
So for those who have not done this for pre-October 2015 tenancies its already too late, but whatever you can do now, it is never too late, do it, give your tenants a GSC and an EPC and any other requirement under the deregulation act as soon as you now, whilst you are in good terms with your tenants, get them to sign for it, just in case you may have to use a S21 notice in future. If you can't cover all the angles, cover as many as you can.

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