Obtaining Possession under the Deregulation Act 2015 – Implications for Residential Landlords

All Assured Shorthold Tenancy Agreements entered into on or after 1 October 2015 are now caught by the Deregulation Act 2015. It is, therefore, very important that residential landlords are aware of the effect of the Act and its consequences on their ability to obtain possession of their property at the end of the tenancy agreement.

The changes brought about by the Act relate to service of Section 21 Notices and a landlord’s ability to serve such a Notice. Landlords frequently say how much “red tape” is involved in obtaining possession of their properties, but the Act has introduced extra formalities that need to be adhered to before a valid Notice can be served.

Landlords will be aware that the key to successfully obtaining possession of their properties is accuracy when drafting Section 21 Notices. However, the Act presents additional difficulties to landlords and lawyers alike, as it gives more scope to tenants to challenge the making of Possession Orders.

So, what are the changes?

A landlord cannot serve a Section 21 Notice during the first four months of the tenancy

Gone are the days in which a landlord can serve a Section 21 Notice at the start of the tenancy agreement. This could prove problematic to a landlord who has granted a six-month tenancy and wishes to give notice to their tenant at the end of the period. In which case, a landlord would need to serve Notice on their tenant immediately at the end of the first four months.of the tenancy agreement.

A landlord must provide the tenant with a Gas Safety Certificate, Energy Performance Certificate and Government “How to Rent” booklet at the start of the tenancy

Failure to comply will result in the landlord being unable to serve a valid Section 21 Notice. This can be cured by providing the information to the tenant late but a landlord cannot retrospectively cure a Section 21 Notice that has already been served.

The expiry date of the Section 21 Notice does not need to be the end of a rent month

A simple two months’ notice is all that is required. But, obviously, the Section 21 Notice cannot expire before the end of the tenancy agreement.

Prevention of retaliatory evictions

This is of particular importance to landlords who have very difficult tenants and who wish to “spin out” the eviction process. Firstly, if a landlord has received a Hazardous Notice from the Local Authority in relation to disrepair, the landlord cannot serve a valid Section 21 Notice on the tenant within six months of them receiving the Hazardous Notice. Secondly, a Section 21 Notice can retrospectively be held to be invalid if the tenant complains to the landlord, and the landlord fails to respond to the disrepair issues “adequately”.

“Use it or lose it”

Previously there was no time limit in which to act on a Section 21 Notice so Notices could expire and then possession proceedings could be commenced by landlords, in some cases, years after expiry. Now the Section 21 Notice needs to be acted on and proceedings commenced within six months from the date the Notice is served on the tenant. Landlords need to be aware of this so they do not lose the opportunity to commence possession proceedings.

A new format for the Section 21 Notice has been introduced

A new form of Section 21 Notice must now be used for tenancy agreements granted on or after 1 October 2015, although the previous form can still be used for tenancy agreement entered into before 1 October 2015. Landlords must be aware of this so that their possession claims are not dismissed by the Court.

A number of these changes will not pose any real danger to landlords when they are attempting to take possession, but landlords must nonetheless be aware of them so their claims do not fail when they reach Court. The biggest problem introduced by the Deregulation Act 2015, in my opinion, will be in relation to retaliatory evictions and tenants potential to try and raise disrepair at the property in order to obstruct the eviction process. For further information and advice please telephone me on 01245 504 904 or by email to jsandercock@leonardgray.co.uk.