Yet another trap that landlords need to be cautious of prior to serving a Section 21 ‘non fault’ Notice (Form 6A)

As many landlords are all likely to be aware, in order to seek possession of a property let on an Assured Shorthold Tenancy (AST) in circumstances where the fixed term has expired and the tenant is not at fault (i.e that they have not breached any term of the tenancy agreement), a Notice Seeking Possession pursuant to Section 21 of the Housing Act 1988 must be served.

The Deregulation Act 2015 (“the Act”)(which appears to have caused many headaches for landlords) brought in a new prescribed form of Section 21 Notice Seeking Possession that must be served upon tenants for all new Assured Shorthold Tenancy agreements (AST’s) or renewal AST’s that were entered into on or after 1st October 2015 (“New Tenancy”). The Notice itself is most commonly known as a Form 6A.

For all tenancies that came into existence prior to 1st October 2015, a landlord has the choice of serving either a Form 6A or the ‘old style’ Section 21 Notices pursuant to Section 21(1)(b) or 21(4)(a).

Unfortunately what should be considered a straightforward matter can now be considered to be exceedingly complicated. Ironically, the Act appears to have brought in several additional burdens for landlords in relation to all New Tenancy’s. Whilst the Act does not currently apply to any pre-October 2015 AST’s, as of 1st October 2018 the Act will apply to all AST’s.

As such, when faced with a New Tenancy, landlords will need to ensure that they have complied with the regulations contained within the Act prior to serving a valid Form 6A.

The checklist of ‘potential traps’ are as follows:-

1. That the How to Rent Guide, Energy Performance Certificate and Gas Safety Certificate is served upon tenants at the commencement of a New Tenancy;
2. That a property has a valid licence if considered to be a House in Multiple Occupation (HMO);
3. That the requirements associated with securing tenants deposits and serving Prescribed Information is complied with in the appropriate time-frame; and
4. That the landlords motivation to serve a Form 6A is to avoid carrying out necessary works to the property (commonly known as ‘Retaliatory Eviction’)

In this article, the trap numbered 1 above will be explored further to ascertain whether there is a solution if the documents are not served at the commencement of the New Tenancy.
Many landlords have assumed that so long as the documents are served at some point during the tenancy, a valid Form 6A can be served.

There has however been a significant County Court decision that was made in February 2018 (Caridon Property v Monty Shooltz, unreported, Central London County Court, 2 Feb 2018) where the Judge held that the strict wording of the Act applied and a failure to serve the documents at the commencement of the tenancy could be complied with retrospectively. In this particular case, the document that had not been served concerned a Gas Safety Certificate and it is therefore unclear whether the Judge would have adopted the same approach if the landlord had failed to serve a How to Rent Guide or Energy Performance Certificate.

Practically speaking, the only solution appears to be that if the documents are not served at the commencement of the tenancy, then so long as the documents are served either at the commencement of any replacement tenancy or when a Statutory Periodic Tenancy arises then it appears that the requirements of the Act have been complied with.

It must be noted however that the decision in Caridon is only a County Court decision and therefore technically not binding. Nevertheless prudent landlords should always seek to serve the requisite documents at the commencement of the tenancy to avoid a situation akin to Caridon.

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