How much longer will landlords be able to use s.21 notices to terminate a tenancy?
The government is aiming to have the provisions of the Renters Rights Bill which end the use of s.21 notices in force by the Summer of 2025. Most landlords who have already granted AST agreements still have a window of opportunity to use the s.21 procedure if they choose, but this window is closing. When the new regime arrives, there will be a short period where some landlords are still able to use the s.21 process, subject to shorter deadlines. Residential landlords and their agents need to be aware of these changes and take particular care over preserving s.21 rights over the next few months.
Existing Assured Shorthold Tenancy agreements
The Renters’ Rights Bill provides for ASTs to be abolished, with existing ASTs converted to assured tenancies and s.21 notices being abolished with respect to new and existing tenancies. Once the provisions come into effect, it will no longer be possible to serve a s.21 notice, (even if you entered into the letting some time ago on the understanding that this would be possible). Where a tenancy’s initial fixed term is due to expire before next Summer, or where a property is already let on a periodic basis, landlords may be considering whether they are prepared to allow the letting to continue under the new regime, or whether they should take prompt action to bring the current letting to an end while they still can.
Inevitably, when the new provisions do take effect there will be some cases where a s.21 notice has already been served, but the tenant is still in possession. Like the previous government’s draft legislation, the new bill includes transitional provisions to address this situation. They provide for the tenancy to continue as an AST until the s.21 process (including proceedings) has run its course. This applies where possession proceedings are already underway, where a s.21 notice has been served but the notice period has not yet elapsed, and also where the period has elapsed, but proceedings have not yet been started. A key difference, however, is that the new bill includes provisions shortening the deadline for taking proceedings. At present, possession proceedings based on a s.21 notice can be started up to six months after the date on which the s.21 notice was served (except in circumstances where the landlord is required to specify more than a two months’ notice period. In these cases, the deadline for starting proceedings is four months after the date specified in the s.21 notice). The Renters Rights Bill provides that the deadline for starting proceedings based on a s.21 notice cannot be more than three months after the new regime’s commencement date.
Potential problems to avoid
This means that a landlord who serves a valid s.21 notice just before the new provisions come into force, giving the minimum two months’ notice period, will have a very short window of time in which to start possession proceedings.
A landlord who allows a longer notice period, by way of allowing their tenant more time to find a new home, could find that they accidentally deprive themselves of the ability to take possession proceedings at all.
On the other hand, it would be easy for a landlord anxious to avoid falling into that trap to fail to allow sufficient time for service of the s.21 notice and so invalidate the notice by including too early a date.
Another pitfall that landlords of existing tenancies need to look out for, is whether they have in hand all the paperwork required to support a s.21 notice. A s.21 notice will only be valid if, before it is served, the landlord has complied with their legal obligations in respect of serving the EPC certificate, gas safety records, How to Rent booklet and prescribed information about the deposit. Whilst most of these obligations should be complied with at the start of the tenancy, it is not unusual to find that there has been a mistake made somewhere or, more often (and more frustratingly), that a form has been incorrectly completed, or that although the landlord did comply at the time, his records demonstrating compliance are incomplete. At present, where this type of problem arises the landlord can usually recover his position by serving the missing information and then sending a new s.21 notice. As the window for serving these notices closes, it becomes much more important to make sure that the required records are all available before a s.21 notice is served. Possession proceedings based on a s.21 notice where the supporting paperwork is incomplete will fail.”
If you’d like to discuss any of the issues arising out of this blog don’t hesitate to contact us: 020 7832 6410 or info@dewarhogan.co.uk
Dewar Hogan specialises exclusively in advice and representation in relation to residential and commercial property issues and disputes, including professional negligence claims against solicitors and other property professionals. Our services in relation to residential property include all landlord and tenant matters.
*This article was revised to reflect recent developments*