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The Deregulation Act 2015 introduced important changes to when landlords of property let on assured shorthold tenancies (ASTs) can serve Section 21 notices in order to gain possession of their property. The Deregulation Act 2015 came into force on 27 March 2015 and did not previously apply to pre-October 2015 ASTs of dwelling houses in England – but from 1 October 2018 they apply to all ASTs.

The most significant changes are:

  • Notice valid for six months: when a Section 21 Notice is served on a tenant giving them two months’ notice to leave the property, a claim for possession must be issued within six months from the date the notice was served. This generally applies to all Section 21(1) notices to end fixed-term tenancies;
  • More than two months’ notice is given to the tenant (periodic tenancies only): where a Section 21(4) Notice requires the landlord to give more than two months’ notice, a claim for possession must be issued within four months from the date specified in the notice.

When serving a section 21 notice, it must be in the prescribed form to ensure its validity. Using the new form 6A is advisable; it can be found on the website.

Gas safety certificates, EPCs and ‘How to rent’ checklist

Landlords of all properties let on ASTs from 1 October 2018 must ensure the tenant is issued with a gas safety certificate, a valid EPC (available free of charge) and the up-to-date version of the government’s How to Rent: the checklist for renting in England prior to serving the Section 21 notice. The requirement relating to issuing a gas safety certificate must be complied with prior to the start of the tenancy agreement. The courts are currently interpreting this requirement strictly. It is thought that an EPC and the How to Rent checklist can be given to the tenant after the start of the AST, as long as they have been given these before service of the Section 21 notice. However, if the above documents have not provided to a tenant before a Section 21 notice being served, landlords will not be able to serve valid Section 21 notices.

Retaliatory evictions and the Deregulation Act 2015

Landlords may not be able to serve Section 21 notices if the tenant notifies the landlord or the landlord’s agent of a disrepair issue. The Deregulation Act 2015 sets out a defence to possession requested under a section 21 notice, known as “protection from retaliatory eviction”. If a formal notice under the Housing Health and Safety Rating System is served on the landlord, they are prohibited from serving a section 21 notice for six months from the date of its service.

This is to prevent landlords serving notice on tenants because they have complained that the property is in disrepair. What we have seen in practice is that some tenants are using this as a tactical advantage in order to prevent landlords from serving notice on them.

The Deregulation Act 2015 is designed to improve the possession process for landlords and tenants in England, so it is important to be aware of the above changes.

For more information on any of the issues raised in this article or on landlord and tenant issues in general, please contact Faye Schneider by emailing [email protected] or Kesena Ohazurike by emailing [email protected].