Legislation alerter: Changes to s. 21 possession notices

1st October 2015

Landlords, receivers and property management professionals in England need to be aware of a raft of changes to the accelerated possession procedure for assured shorthold tenancies, which came into force on 1 October. Walker Morris’ Housing Litigation specialist explains.

Several new provisions will affect landlords seeking to rely on the accelerated procedure for recovering possession of residential properties let on assured shorthold tenancies. The main changes are summarised below.

In relation to all assured shorthold tenancies which commenced or became periodic on or after 1 October 2015:

Section 21 notices served within the first four months of an assured shorthold tenancy will be invalid [1]. The practice of serving a section 21 notice at commencement of the tenancy (by including it at the rear of the agreement) will therefore no longer be available. Whilst landlords can still grant an assured shorthold tenancy for a term less than four months, possession proceedings cannot be validly commenced during the tenant’s first six months in occupation.

Section 21 notices will only be valid for six months from the date of service of the section 21 notice[2]. Whilst this will mean that it will not be possible for a landlord to rely on a notice older than six months to regain possession of a property, it is good practice for proceedings to be issued relatively soon after the expiry of the notice in any event. It is therefore anticipated that this change will not affect the vast majority of landlords and receivers.

In relation to assured shorthold tenancies which commenced on or after 1 October 2015, but excluding those which began before this date and subsequently become periodic:

Landlords serving a section 21 notice will have to ensure that the tenant has been provided with an energy performance certificate and a gas safety certificate before the notice is given[3]. This could be particularly troublesome for receivers where the tenant of the property is not responsive and fails to allow access for the relevant inspections and checks to take place. Purchasers of properties in the private rented sector should also ensure that they obtain evidence of the relevant certificates being served on the tenants by the seller.

A prescribed form of section 21 notice will be introduced. The prescribed form (form 6A) must be used for all tenancies which began or become periodic on or after 1 October 2015. Whilst this could be positive for landlords as it reduces the scope for necessary details to be omitted, the form of the notice itself is not as clear as it could be and could lead to confusion for landlords.

It is important that landlords and their representatives get to grips with the new rules. Failure to adhere to the new requirements could lead to a section 21 notice being deemed invalid by the court, resulting in additional costs and delays to recovery of possession.

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[1] Housing Act 1988 s.21 (4B)
[2] ibid s.21 (4D)
[3] ibid s.21A and Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015