Regulations for the new standardised form of s.21

The Government has now laid the regulations that bring in the new standardised section 21 notice which forms part of the changes being made by the Deregulation Act. I have previously commented on drafts of the notice and there has been changes made in the final version.

Some issues have been resolved. I had previously been concerned that there was a lack of clarity as to which tenancies the new form of notice would apply to. This is now clear. The new form of s21 notice only applies to tenancies which are new or are renewed after 1 October 2015. It will not apply to statutory periodic tenancies which follow on from tenancies started before this date.

There is also clarity over the much anticipated additional requirements. For a section 21 notice to be validly served the tenant must have at some prior stage received:

A valid EPC
A current landlord’s Gas Safety Certificate
The Government How to Rent Guide

The How to Rent guide can be provided by email where the tenant has notified the landlord of an email address for service. This is the first time that email has been recognised in statute in the residential tenancy sector as a valid means of serving something. There is also no requirement for the landlord to re-serve the How to Rent Guide every time it is updated. Once is enough.

However key problems remain.

First there is no saving provision available in the notice. This is the backup form of words designed to correct errors in the date given in s21(4)(a) notices in particular. There is less need for this as after the case of Spencer v Taylor most landlords will be serving an s21(1)(b) notice. Additionally, the requirement for an s21(4)(a) notice to end on a specific day has been removed by the Deregulation Act so it is far easier to get them right. However, an s21(4)(a) notice must also give not less than one period of the tenancy’s notice. So a quarterly tenancy must give one quarter’s notice. In some cases it is hard to be clear about what the period of the tenancy is and so retaining a saving provision would have been helpful.

Second, there are some surprises in the notes to the notice. It states that where the notice is being sent by ordinary first class post then two days must be allowed for service. It is useful to mention time for service but the period allowed is actually dependent on the deeming provision in the specific tenancy agreement. Some people allow two days, some two working days, some specify the next working day on the basis that first class post normally arrive the next day other than on Sundays. The notes to the notice are probably binding though and so some changes to tenancy agreements may be needed.

There will now be a lot of work for landlords and agents to do to get their processes and systems updated and aligned with the new procedures in time for a 1 October start.

Finally, there is a surprising new obligation on the Secretary of State. He is now required to issue a report every five years. It is required to report on the effectiveness of the new s21 notice and assess whether changes need to be made to meet the regulatory objectives. We have some time to wait though as the first such report is not due until 1 October 2020!

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