Terminating assured shortholds: avoid falling into the trap of serving invalid section 21 notices
Assured shorthold tenancies that began on or after 1 October 2015 are beginning to feel the effects of the Deregulation Act 2015, as landlords have started to serve notices to terminate these tenancies under section 21.
In order to serve a valid section 21 notice in relation to tenancies that began on or after 1 October 2015, landlords or their agents must do the following:
- protect the deposit in an authorised deposit protection scheme and provide the tenant with a copy of the Prescribed Information within 30 days of receipt
- provide the tenant with a copy of the 'How to Rent: The checklist for renting in England' guide at the beginning of tenancy or at least before serving the s21 notice
- provide the tenant with a copy of the Energy Performance Certificate for the property at the earliest opportunity or at least before serving the s21 notice
- provide the tenant with a Gas Safety Certificate within 28 days of the gas safety check or at least before serving the s21 notice
Some deposit protection schemes claim that they will serve the prescribed information for you. However, this may not have been done correctly so I would advise all landlords to double check this.
If the deposit is not protected in an authorised scheme within 30 days of receipt, belatedly protecting a deposit is not an acceptable remedy. Unfortunately for landlords, the only solution is to repay the deposit in full which is particularly galling if a tenant is in arrears or the property is damaged. However, serving the Prescribed Information once the 30 days has elapsed does not preclude a landlord from serving a valid notice.
Under s214 of the Housing Act 2004, where a landlord has failed to protect a deposit in an authorised scheme within 30 days of receipt and/or failed to serve the Prescribed Information within 30 days, then a tenant would be entitled to seek compensation from the landlord in the sum equivalent to up to three times the amount of the deposit.
A prescribed form of s21 notice must be used for all tenancies that began on or after 1 October 2015.
The Deregulation Act 2015 also prohibits retaliatory eviction of tenants so please look out for my upcoming article in relation to this.
From 1 October 2018 these regulations will apply to all Assured Shorthold Tenancies, i.e. those created before 1 October 2015 as well as those that began on/after 1 October 2015.