Q and A for Deregulation Act 2015

We recently held a webinar on rapid tenant eviction via HCEO (High Court Enforcement Officer) which included a particular focus on the various eviction notices that need to be served.

Some great questions were raised so in this article we are going to focus on providing the answers to those questions relating to the changes that impact on landlords as a result of the Deregulation Act 2015, which came into force on 1st October.

I would like to thank Tim Briggs of LegalMentor, tenant eviction specialists, for his support in answering these questions, as well as for being co-presenter in the webinar.

• Is it still the case that a section 21 notice can end on any date provided you have given at least 2 months and you are not in the fixed term, whether periodic or not?

Yes. Also 2 months can be given in the last 2 months of the fixed term. But make sure you allow the different time periods for different modes of service before you calculate the 2 months.

• Does the six month expiry apply to old section 21 notices?

The six month expiry only applies to Section 21 Notices that are served in order to end assured shorthold tenancies which started after 1st October 2015.

In light of the impact disrepair allegations can now have on s21 notices, how can landlords best handle spurious and repeated disrepair claims designed to delay and/or thwart the possession claim?

Not easily. That is the problem with the legislation. The MPs were aware of it at the time, and yet a simplistic idea of all landlords as bad people and all tenants as victims appears to have triumphed over common sense. You can cover yourself by keeping good records of all correspondence with the tenant(s), the exact work done (emails, receipts and invoices), and clear and precise notes on dates and times. These things give a landlord the evidence to be able to refute a tenant’s allegations.

• Will any property complaint act as a delay to evict a tenant, or does it have to be a specific health & safety related one? And what proof is required?

Presumably only a property complaint about health and safety, but since disrepair issues will cross over into health and safety issues, the complaint can probably cover a broad range of issues. Again, it is important to keep good records of all correspondence with the tenant(s) with clear and precise notes on dates and times.

• If a tenant stops paying rent in first 4 months of an AST, can a landlord still not serve notice and evict, even if there are no property complaints?

You cannot serve a section 21 but there is no restriction on serving a Section 8 Notice as soon as the tenant is more than 2 months or 8 weeks in arrears. We have been involved in possession claims where the tenant has never paid a penny.

• If the inventory is emailed to the tenant upon moving in and they do not sign and return it, is the document still valid? If you have proof that it has been sent to the tenant for their signature, will this suffice?

It can be good evidence even if it is not signed, and it is useful to be able to show that it has been sent to the tenant, as the question for the court is simply whether, on the balance of probabilities, the inventory was received by the tenant. If the tenant refuses to sign or return the inventory, so long as you can prove it was received (an email for example), there is not much more the court can expect you to do.

• What happens if the tenancy is entered into in June 2015 and the landlord has no contact details i.e. telephone number or e-mail address for the tenant to enable them to register and protect the deposit and the tenant is now refusing to communicate with the landlord?

You need to return the deposit to the tenant. At least you know where they live. If you do not have any bank details to return the deposit by bank transfer, take the deposit to them in cash, and a document for them to sign saying the deposit has now been returned.

• Can the smoke alarms be battery operated or must they be mains operated? Do you also need a carbon monoxide alarm? Do smoke alarms need to be fitted retrospectively to all ASTS or is it only ones since 1st October 2015?

Not sure, as this is not our area of expertise.

For tenancies after 1st Oct, if the gas certificate, EPC and tenant guide have not been provided at the start of the tenancy, is it simply ok to provide these just prior to serving the section 21 at a later date?

That is my understanding at this moment in time.

• Where can we find the new s8 and s21 notices?

Section 21 can be found here. http://www.legislation.gov.uk/uksi/2015/1646/pdfs/uksi_20151646_en.pdf

Section 8 (Form no. 3) can be found here. http://www.legislation.gov.uk/uksi/2015/620/pdfs/uksi_20150620_en.pdf

However, we do not advise you to serve these Notices yourselves, especially the Section 8 Notice, as the majority of Section 8 Notices we see that have been completed by landlords are easily defeated at court.

• Can you use the new prescribed s21 form for tenancies pre-October 2015?

Yes.

• If tenant pays deposit in instalments does the 30 days run from the last payment and what if the whole of the deposit is never paid?

Nightmare. Only take the whole amount. The 30 days will run from the first time that money is taken. Otherwise you have to return the money already taken. You also have to serve the deposit certificate and prescribed information on all ‘relevant persons’, so anyone else who contributed any of the deposit money.

• What happens if the tenant won’t accept a returned deposit (re s21 notice rules)?

Assuming you do not have the tenant’s bank details to return the deposit by bank transfer, try to return it to them in cash, with good evidence of having done so. If they refuse the cash, and they are clearly trying to avoid receiving the deposit, then they are using the law as a blunt instrument to defeat the landlord’s interests. In those circumstances a recent High Court case provides binding authority that the court should consider the deposit as having been returned for the purposes of serving a Section 21. But you may need good evidence of having tried to return the deposit in order to persuade the court that your Section 21 Notice is valid.

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