Serving S21 when you have not given tenants right paperwork upfront

by Readers Question

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

Serving S21 when you have not given tenants right paperwork upfront

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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.


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.

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David Price

0:23 AM, 29th August 2018
About 2 years ago

Reply to the comment left by Michael Barnes at 28/08/2018 - 23:27
The government does not understand its own legislation, perish the thought.


3:34 AM, 29th August 2018
About 2 years ago

If this is the case, then it would be best for all landlords who currently don't have any issues with their tenants to issue new ASTs whilst tenants are not aware of this loop hole, which they can use against S21, so best to tell your tenants that due to changes in the Housing Law, due to deregulations act, most landlords have to now comply with new requirements and from October 2018, the new deregulations act applies to all tenancies even those that started before October 2015, so draw up new ASTs and hand all the necessary prescribed information, making sure the tenants sign for them on the AST as having received them, also return their deposit and re-deposit it again for those who take deposit. this way should a landlord need to use S21, then the courts will have no grounds to dismiss it.
However the gas safe regulations stipulate that the GSC can be displayed in a prominent place within the dwelling. In an HMO this is the case and in an HMO it is not necessary to give tenants a copy of EPC.

Renting or becoming a landlord is now a nightmare, and not a dream any more.

David Price

4:30 AM, 29th August 2018
About 2 years ago

Reply to the comment left by Mike at 29/08/2018 - 03:34
Mike, I have never issued a second AST so I am not certain but I believe that the courts consider what happened when the first AST was issued. As you say it's a nightmare. Landlords can now get a criminal record for a clerical error. It is only a matter of time before a landlord is jailed for something his tenant has done, something completely beyond his control.


9:45 AM, 29th August 2018
About 2 years ago

David, yes there us a risk a court could look at it as a second AST, however, by taking the second AST effectively cancels the first one, or it should do so, however you may further safeguard yourself by requesting your tenant to surrender the first one and take out a fresh AST, I am sure a good tenant would not mind doing that, in fact it would give him a piece of mind as the new AST would guarantee a new term of 6 months minimum. So this can then not be called a second one but a new one, then no one could challenge that long as the first one is voluntarily surrendered by your tenants.

Remember we don't serve S21 to our good tenants, we want them stay for as long as they can.

Ian Narbeth

9:54 AM, 29th August 2018
About 2 years ago

Reply to the comment left by Michael Barnes at 28/08/2018 - 23:36
Michael, the case referred to in the article you linked to is, strictly, not binding either in London or elsewhere. It is a County Court case and they do not create legal precedents that are binding on other courts. However, as Giles Peaker notes: "it will be very difficult for any District Judge in London to dissent, and it will have potentially persuasive effect elsewhere".

To answer the slightly lazy Mike, not serving the Gas Safety Certificate BEFORE the tenant takes OCCUPATION may be an irremediable defect. Crazy, crazy law but there it is. Good luck if the tenant is well informed.


10:29 AM, 29th August 2018
About 2 years ago

Reply to the comment left by Ian Narbeth at 29/08/2018 - 09:54Yes Micheal not serving a Gas Safety Certificate before the tenant moves in does not mean a certificate was not in force, it simply was not given to him at the start of the tenancy, may be the politicians need to change this law as it is damn confusing and senseless, just having a valid safety certificate in force should suffice rather than giving copies of it to tenants, as if they would really be interested in gas safety certificate, they have umptreen better things to worry about than a gas safe certificate.. that is my opinion, Also for those who think having a gas safety certificate does not really mean a gas appliance or installation is safe. All it safeguards the technicality of having had one obtained prior to any tenants occupying a premises, and still valid when say for example an appliance blew up for some unknown reason, it could have been negligence of a gas safe engineer etc..

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