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New form for s.21 notices (by Andrew Dymond)

With effect from 1 June 2019, the prescribed form of notice requiring possession against assured shorthold tenants is being changed.

The new form is in the Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2019 (SI 2019/915). For the full form, see http://www.legislation.gov.uk/uksi/2019/915/pdfs/uksi_20190915_en.pdf

The new form is substituted for the existing Form No.6A in the schedule to the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 (SI 2015/620). It amends the list of circumstances in which a landlord can serve a s.21 notice.

Licensing

First, instead of having the words “where a property requires a licence but is unlicenced”, the new form has:

‘where a property requires a licence but is unlicenced

‘(NB see section 75 of the Housing Act 2004 which relates to Housing is Multiple Occupation (“HMO”).’

The intention is to alert occupiers of HMOs to the possibility of defence to the possession claim. Oddly, there is no reference to the equivalent provision in s.98, 2004, in relation to selective licencing under Pt 3.

Tenant Fees Act 2019

Secondly, there is advice on the effect of the introduction of the Tenant Fees Act 2019:

‘where the landlord is prevented under section 17 of the Tenant Fees Act 2019. (NB No section 21 notice may be given in relation to a tenancy where a landlord has breached section 1(1) or Schedule 2 of that Act so long as all or part of the prohibited payment or holding deposit has not been repaid to the relevant person or applied to the rent or deposit with the consent of the relevant person.’

The relevant provisions of the Tenant Fees Act 2019 also come into force on 1 June 2019. The provisions of the Act are detailed but, in essence, they restrict the payments which landlords (and managing agents) can require of tenants (and others such as guarantors). A payment is prohibited unless it is one of the permitted payments in Sch.1 to the Act. In general terms, the permitted payments are: rent; refundable tenancy deposits; refundable holding deposits; certain payments on assignment, novation, variation or termination; payments in respect of utilities and council tax; and, fees for tenant default. Examples of the sort of charges which have commonly been required in the past which are no longer permitted include fees for: credit checks, right to rent checks; obtaining references; and, carrying out inventories.

Detailed provision in made about the treatment of holding deposits in Sch.2 to the Act. In essence, after receiving the holding deposit, the landlord has 15 days in which to decide whether to grant the tenancy (although a longer period can be agreed in writing). The landlord must repay the deposit if: (a) the tenancy is entered into; (b) the landlord decides not to enter into the tenancy; or, (c) the deadline passes. The deposit must be repaid within seven days of any of these events, although the parties can instead agree that the deposit is applied to the first payment of rent or to the tenancy deposit. If the tenant withdraws or fails “to take all reasonable steps” to enter into the tenancy agreement before the deadline, the landlord can keep the holding deposit

Section 17 provides that the landlord cannot serve a s.21 notice if he is in breach of his duties in relation to prohibited payments or a holding deposit until the relevant fee is repaid.

Homelessness Reduction

The notice also includes a new section alerting tenants to the assistance which they may obtain from local authorities under the homelessness prevention duty in s.195, Housing Act 1996, introduced by the Homelessness Reduction Act 2017.

‘Information for tenants who have received this notice and are concerned they may be at risk of homelessness

‘If you are a tenant and you believe you are at risk of homelessness as a result of receiving an eviction notice, then you should consider contacting your local authority for support. Local authorities have a legal duty to provide homeless people or people who are at risk of becoming homelessness within 56 days with advice and support to find a new home. More information on the process that must be followed by landlords when seeking to evict a tenant is available at https://www.gov.uk/private-renting-evictions.

‘You can also get advice and support from your local Citizens’ Advice Bureau, a housing advice centre, a law centre or a solicitor. Free independent advice is also available from Shelterline on 0808 800 4444 or via the Shelter website at: https://www.shelter.org.uk/.”

(Please note that “becoming homelessness” is in the SI and is not my typo).

Comment

The 2015 Regulations do permit the landlord to use a form which is “substantially to the same effect” as the prescribed form: reg.2. This is a term commonly found in statutory instruments prescribing forms and there are cases in which the use of an out-of-date form has been held to be compliant. Given the significance of the inclusion of the references to the Tenants Fees Act 2019 and the local authorities’ duties to the homeless, it is difficult to imagine that the old form of notice could possibly be said to be “substantially to the same effect”. It is therefore crucial for landlords to use the new form as from 1 June 2019.

 

Andrew Dymond

4-5 Gray’s Inn Square

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