Serving S21 when you have not given tenants right paperwork upfront

by Readers Question

8:23 AM, 28th August 2018
About 2 months ago

Serving S21 when you have not given tenants right paperwork upfront

Make Text Bigger
Serving S21 when you have not given tenants right paperwork upfront

If you are one of slightly lazy landlords like I am at times, who allowed new tenants to move in and had not given your new tenants a copy of a valid Gas safety record , or the new booklet called “Right to Rent”, and or Energy Proficient Certificate (EPC), then worry not, it is not the end of the world, all you need to do is give the copies of each of above to your tenant just before serving a Section 21 Notice.

Apparently Governments’ own website clearly states that as soon as you have given your tenants these prescribed information, the restriction from serving a S21 is lifted immediately. So if you did not manage to give these to a new tenant at the beginning of a new tenancy, you can serve correct and valid documents anytime after but before issuing S21 Notice, correct me if I am wrong .

However this does not apply to any deposit taken, which must be protected within a certain time frame, but if where a landlord has not protected it within a time frame then it is best to return it to a tenant and make sure he signs and acknowledges that he has received all his deposit back.

I was struggling to issue S21 notices to my tenants because everyone on here is of the opinion that these paperwork should be served upfront of tenants moving in, so now the fact is it does not have to be like that and the Government website says they recommend (Note: it says we “recommend” and does not say you must) give these to new tenants before moving in, or upfront, and if these have not been given then you cannot serve a S21 Notice, but as long as they have been given any other time but before serving S21, then it is well and OK to serve S21 notice. As soon as this prescribed information pack is given to your tenants you can go ahead and serve S21 Notice, but get the tenants to sign for them when you give them this pack. Only then serve S21 afterwards like next day or so. It may be a risky to serve S21 along with the pack at the same time, so avoid falling in a pit.

happy serving S21.

Mike

Editiors Note:

This is a readers question not a statement of fact therefore I suggest all readers also consider the articles below written by Tessa Shepperson of Landlord Law:

How to stop evictions going wrong

Dealing with Deposits

Section 21 – the New Pre-Conditions

Section 21 – time limits, forms and retaliatory eviction

Are you properly protected against claims by tenants and prosecutions by the authorities?

Looking at Section 21

By Paul Shamplina of Landlord Law:

What does the Deregulation act 2015 mean for Landlords?

Deregulation Act 2015 tenancy deposits

The requirement to protect a tenancy deposit taken for an assured shorthold tenancy in England and Wales was introduced on 6 April 2007, following its inclusion in the Housing Act 2004.

Deposit protection legislation was introduced because the government recognised many deposits were being unfairly withheld at the end of a tenancy. So the aim behind the Tenancy Deposit Protection is to raise standards in the lettings industry and ensure tenants are treated fairly at the end of the tenancy.

The legislation covers virtually all new assured shorthold tenancy contracts used by letting agents and landlords to let a property in England and Wales.

Since the Tenancy Deposit Scheme (TDS) legislation came into force, there have been a number of cases before the courts in which the wording of the legislation has been under scrutiny. These cases include Superstrike Ltd v Rodrigues and Charalambous v Maureen Rosairie Ng.

But overall the Deregulation Act 2015 has provided much needed clarification on the steps that a landlord must take to comply with TDS legislation.
Deposits taken before 6th April 2007 and tenancies that became periodic before April 2007

Deposits don’t need to be protected if a tenancy deposit was received for a fixed term tenancy before 6th April, or if the landlord holds the deposit against a statutory periodic tenancy, which also started before April 2007.

However, if a landlord wishes to gain possession of the property under Section 21 of the Housing Act 1988, the deposit must be protected and the Prescribed Information issued to the tenant prior to serving the Section 21 notice.

Landlords will not face any financial penalties for non-protection of the deposit.
Deposits taken before 6th April 2007 and tenancies that became periodic after April 2007

Deposits taken before 6 April 2007, for tenancies that are still running and have moved onto a periodic tenancy on or after this date, now need to be protected in a Tenancy Deposit Protection scheme. If a deposit remains unprotected, the landlord could potentially face a fine.
Deposits taken on or after 6 April 2007

Landlords who took a deposit on an assured shorthold tenancy (AST) after 6th April 2007 and correctly protected and served the Prescribed Information to their tenant do not need to reissue the Prescribed Information to the tenant on future renewals of the AST, or if the AST rolls into a statutory periodic tenancy.

This is so long as the tenancy details haven’t changed (i.e. landlord, tenant and property information) and the deposit remains in the same tenancy deposit protection scheme.

Prescribed Information can include details of a person representing the landlord. The act confirms that where an agent has protected the deposit on behalf of the landlord, the agent’s contact details may be provided in place of the landlord’s.

Deregulation act 2015 section 21

On 1 October 2015 further provisions in the Deregulation Act 2015 came into force to protect tenants against unfair eviction when they have raised a legitimate complaint about the condition of their home.

The legislation also requires landlords to provide all new tenants with information about their rights and responsibilities as tenants. This information includes such detail that a landlord cannot serve a Section 21 notice unless they have complied with certain legal responsibilities.

The government also introduced a new standard form that landlords must use when evicting a tenant under the ‘no fault’ (section 21) procedure. This makes it more straightforward for landlords to evict a tenant where it is legitimate to do so.

These provisions apply to all new assured shorthold tenancies that start on or after 1 October 2015. However, as of 1 October 2018 the provisions will apply to all ASTs in existence at that time.

1. Compliance with prescribed legal requirements

A Section 21 notice may not be given if the landlord is in breach of any legislation which relates to any of the below.

The condition of dwelling houses or their common parts
The health and safety of occupiers of dwelling-houses
The energy performance of dwelling-houses.

This means all landlords must provide tenants with an EPC and a Gas Safety Certificate before the tenancy begins. If at a later date the landlord wants to serve a Section 21 notice on a tenant, he will need to prove the tenant has been provided with these two documents. If they don’t do this then the landlord wont be able to use the section 21 notice.

2. Requirement of the landlord to provide Prescribed Information

At the start of each AST, landlords are now required to provide tenants with a copy of the Department for Communities and Local Government’s booklet entitled ‘How to rent: the checklist for renting in England’.

3. Prescribed form of Section 21 notices

The new Section 21 notice combines the two previous section 21 notices into a single use notice for both fixed-term and periodic tenancies. It‘s for use with new tenancies starting after 1st of October 2015 and all tenancies (regardless of when they started) from 1st October 2018.

4. Timing and Lifespan of a Section 21 Notice

From 1st October 2015, a landlord is now no longer able to serve a Section 21 notice within the first four months of the contractual term of the tenancy. This is to stop landlords and their agents serving notice at the start of a tenancy if they want to finish it at their convenience.

A Section 21 notice now also has a lifespan. Once a Section 21 notice has been given under a fixed term AST or a periodic AST, possession proceedings must be started within 6 months of the date the notice was given. If the landlord doesn’t do this then the possession notice is invalid and a new one will be needed.



Comments

David Lawrenson

10:05 AM, 28th August 2018
About 2 months ago

We advise our clients to make sure they give these things to the tenant and in our ASTs we incorporate statements that "I agree I have seen the smoke alarms tested, I have seen the EPC, have seen the LGC, have seen the "How To Rent" info." etc.
That tends to cover ones own a...!! in case of challenge.
David Lawrenson
http://www.LettingFocus.com
Private Rented Sector Advice

David Price

10:34 AM, 28th August 2018
About 2 months ago

I get the tenant to sign a copy of each of the documents and take a photograph of the tenant holding copies of the document. This is in addition to signed statements within the ast.
I do not take deposits, a fact which is stated on every page of my AST, in the header. This has not stopped CAB from delaying, but not preventing, possession because rent payments are interpreted as deposits.

Clint

11:24 AM, 28th August 2018
About 2 months ago

One thing one must be aware of, if they are providing the documents just before the s21 is served is that the gas certificate was valid before the tenant moved in.

One thing I am not sure of is, which gas certificate one has to present to the court when making an application for possession after the s21 is served and the date the tenant had to vacate the property has passed and the tenant had rented the property for several years.

The question is, does one send the very first, the current valid or all gas certificates to the court when an application is made?

Mike

11:32 AM, 28th August 2018
About 2 months ago

David, I don't take deposits either as it is not worth the time and hassle for just 1 months rent , in fact it landed me in a police station when I used an agent who took deposit from one of my tenants, as she was going leave , she asked for a code, which I was not familiar with, so I called my agent and he then told me to go to my property and check if all is Ok so that we can return her deposit, I went and only point I raised was that the carpets need cleaning properly in the same manner as when she got in, as she also specified that she wanted all carpets steam cleaned, so on her leaving I saw carpets were in bad state and needed a through cleaning.
So she agreed to have them cleaned professionally, but when I went to collect the keys, I noted they had not be even vacuumed let alone cleaned by carpet cleaning expert. So all i told her was that I will need to deduct 50 pounds from her deposit of 700 pounds, boy did she not lose her nuts, she went ballistic! she started to scream and shout and tried to draw attention to falsely accuse me of common assault, she went and reported this to police, who interviewed me and because of lack of evidence they could not bring a case against me, and she caused such a mayhem and stress to me, since then I have been more careful and usually when i need to confront any tenants over any issues I keep my voice recorder on, however it would be better if we could take some form of body camera.
I was not charged, but the stress iot caused and the police took all my DNA, finger prints, mug shots, makes me feel sick because of one evil bitch.

David Price

13:12 PM, 28th August 2018
About 2 months ago

Reply to the comment left by Mike at 28/08/2018 - 11:32
I have not been arrested for deposit irregularities but my manager has. The police tried to charge him with extortion, blackmail, harassment and deception. His crime, calling to collect the weekly top up. When they accused him of writing abusive letters he laughed in their faces. He is dyslexic and could not write a letter to safe his life, his limit is signing his name.
The whole process lasted three months during which time they impounded the company computers and telephones. No evidence was ever produced and no charges levied. I will never trust or help the police again.

Windsor Woman

13:28 PM, 28th August 2018
About 2 months ago

What a shame the police couldn't have used their time more constructively, for example to help a landlord whose property had been trashed by the tenant. But that's not regarded as criminal damage - a crime - is it?

David Price

13:36 PM, 28th August 2018
About 2 months ago

Reply to the comment left by Windsor Woman at 28/08/2018 - 13:28
Actually it is and there is a 118 thread on the subject. Problem is nobody had told the police.
I agree that police time could be more constructively used. I had a tenant leave a bath full of urine and other noxious substances. The police attitude, could I prove that I did not let the property in that condition?

Mike

13:47 PM, 28th August 2018
About 2 months ago

Yes David it is terrible how police have to act when someone reports an incident or report a fake incident, unfortunately, How many times are Fire Brigades are called to fantom fires, I do not blame them, they are just doing their job.
My tenant was doing some child minding, she would have a few kids around, and as you know kids are kids and often urinated on carpets, so there was this stench of urine, more of it in the toilet as some real small kids had poor aim, the carpets did need steam cleaning for the next tenants, but she produced a fake invoice from a company who went all the way from London to Harlow to professionally clean carpets for guess what 15 quid! No one cleans carpets for that low price. I pointed out to her there was dust on carpets that they had not even been vaccumed let alone steam cleaned, and the stench of urine was still prevalent.

Darren Peters

17:56 PM, 28th August 2018
About 2 months ago

I put copies of the latest gas cert, EPC, DPC in the same envelope as the Form 6a. In my imagination, the tenant might go to a no win no fee solicitor who's first question would be, "Can I look at the Notice served" the tenant will show a pile of papers which will save the solicitor asking his standard second question.

Michael Barnes

23:27 PM, 28th August 2018
About 2 months ago

If gas safety certificate is not provided BEFORE tenant moves in, then you may not be able to evict using S21. Currently there is a judgement on this that is binding in London, but not elsewhere (is my understanding).

Advice on government web sites is not necessarily the definitive legal position.

1 2

Leave Comments

Please Log-In OR Become a member to reply to comments or subscribe to new comment notifications.

Forgotten your password?

OR

BECOME A MEMBER

Shelter's website says Section 21 does not cause homelessness

The Landlords Union

Become a Member, it's FREE

Our mission is to facilitate the sharing of best practice amongst UK landlords, tenants and letting agents

Learn More