Section 21 Notices – Smoke and Carbon Monoxide Alarms – Deposits
The Deregulation Act 2015 brought some important changes on 1st October 2015 regarding section 21 notices, and landlords’ further responsibility to tenants. The rules really affect ASTs (‘assured shorthold tenancies’) that begin on or after 1st October 2015.
For ASTs starting before 1st October 2015
In relation to serving Section 21 Notices:
- Landlords can still serve a section 21 notice at any time during the tenancy
- There is no change to the form of the section 21 notices you use
- There is no time-limit after which a section 21 notice expires – unless you give your tenants a new fixed term tenancy, or arguably if you change the terms and conditions of the tenancy, for example by increasing the rent
However please note that the above rules for older tenancies will change in October 2018 to the rules set out below.
For ASTs starting on or after 1st October 2015
Importantly, remember that for ASTs that begin on or after this date, you now need to provide the following documents to tenants at the start of each fixed term tenancy:
- Gas appliance safety certificate
- An energy performance certificate (EPC)
- The government’s document called ‘How to rent: The checklist for renting in England’ – you can download a copy from here
In relation to serving section 21 notices:
- Landlords can only serve a section 21 notice after 4 months of the first tenancy
- The form of the section 21 notice has to be in the new ‘prescribed form’
- The section 21 notice expires after 6 months from the date of service in regard to the new tenancy, so ensure that possession proceedings are commenced as soon as possible.
- Note as time goes on and the new tenancy goes into periodic, you will serve the new section 21 as you would have with the old style giving the tenant 2 months’ notice, but bear in mind the notice will expire after 4 months, so again ensure that possession proceedings are commenced as soon as possible
Any health and safety improvement notice served by the local authority means no section 21 notice can be served for 6 months
Complaints about the property
Any complaint in writing from the tenant about the condition of a property has to be responded to within 14 days. The landlord has to set out in his reply:
- What he intends to do
- The timeline for doing the repair work
If the landlord then either:
- Fails to reply to the written complaint,
- Gives an inadequate reply, or
- Serves a section 21 notice
The tenant can complain to the local authority which as a result must inspect the property. If the local authority inspects the property it can:
- Serve a remedial notice
- Carry out emergency remedial action
At this point the landlord’s rights to evict under section 21 will be held in limbo, since:
- No section 21 notice previously served will be valid
- No further notice may be served for 6 months
However, the landlord can still serve a section 8 notice, but given the repair issues, the tenant may take the opportunity to try and counterclaim to prevent possession and claim damages.
Smoke alarms
Each ‘Living’ floor of each property requires a functioning smoke alarm from 1st October under The Smoke and Carbon Monoxide Alarm (England) Regulations 2015. If the property uses any solid fuel as in wood or coal etc. then in addition it must have a Carbon Monoxide alarm fitted. This will apply if there are open fireplaces which are not used but could be used by the tenant. These rules do not apply to Gas or Oil heating or appliances.
Deposits
If a landlord took a deposit after 6th April 2007 but missed the deadline to get it registered by 23rd July 2015, then this is how the law stands.
If the landlord has not registered a deposit in a government-backed deposit scheme within 30 days of receiving the money, the landlord has to return the deposit money to the tenant immediately, as until the landlord does so they cannot serve a Section 21 Notice.
If the prescribed information relating to the deposit has not been given to the tenants and any other relevant persons within 30 days of the deposit being received, then the landlord cannot serve a section 21 notice. (‘relevant person’ presumably means guarantors, or anyone who helped pay for the deposit).
However, so long as the deposit money has been put into a scheme within 30 days, the ‘prescribed information’ relating to the deposit can be served at a later date, which then allows the landlord to serve a section 21 notice.
Do not expect the deposit scheme to provide the ‘prescribed information’ to the tenants, whatever the scheme suggests it might do. It is the landlord’s explicit responsibility to make sure all relevant persons receive the prescribed information. If in any doubt whatsoever, serve the documents yourself, keeping good evidence of having done so.
Also check with the scheme what documents constitute the prescribed information. The website of one deposit scheme is far from clear what documents to use. If you are not clear, ring the scheme. Notwithstanding these difficulties over section 21 notices, any deadlines for compliance with the rules that are missed mean that the landlord will be liable to the tenant for between one and three times the amount of the deposit, should the tenant bring a claim, or a counterclaim.
