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‘Nightmare’ for agents and landlords as Government finally spells out new Section 21
With barely three weeks to go, the Government has finally published Regulations and guidance for the new Section 21 procedure.
Prominent housing lawyer Tessa Shepperson yesterday described the scenario as a “nightmare”, criticising the very short timescale. Another commentator said there has yet to be any meaningful guidance
Together, the new Regulations and guidance highlight just how prescribed new and renewed tenancies will have to be, with careful paper trails laid from October 1 onwards – and everything signed for.
One expert said that the new regime could make it harder for landlords to gain possession of their properties, with the regime “driven by tenants relying on the argument that the new processes have not been complied with”.
Along with tenancy deposit information, agents or landlords will need to prove that they have given EPCs, gas safety certificates and the government booklet, ‘How to rent’, to tenants.
The booklet, applicable in England, will be available for downloading from the Gov.uk website. It will have to be printed off for each tenancy.
If agents or landlords cannot prove that they have delivered all this paperwork to tenants, they will not be able to use the no-fault Section 21 procedure.
Lawyers are advising that the only way to prove that tenants have been given all this information is to get them to sign.
An additional difficultly, highlighted by agent Ian Sanford, is that neither the Regulations nor the guidance say when the booklet should be given to tenants.
Sanford, managing director of Pennington Properties in Huntingdon, said: “The legislation doesn’t specify when the booklet should be given, but it should be, presumably, just before the start of the tenancy.
“However, the booklet is laid out in such a way that it is meant to be given to prospective tenants before they even look at a property, so it seems a bit late to be giving it to them once they have committed to a tenancy.
“We will also have to get tenants to sign for the booklet as proof that they have been given it, otherwise they could deny it at a court hearing and invalidate the Section 21 notice.
“In the guidance notes it says that the notice will not be valid until the prescribed information, i.e. the How to Rent booklet, has been provided to the tenant, so presumably, it could be sent to the tenant just before the notice is issued!
“We are going to get all our tenants to sign for the EPC, Gas Safety Certificate (where appropriate) and How to Rent booklet at the start of each tenancy after October 1, as, if we don’t have proof that they have been given these documents, they could claim they never received them, thereby invalidating the Section 21 notice and preventing a landlord obtaining possession.
“After the fiasco with the Smoke and Carbon Monoxide Alarms legislation, this is another ill thought out piece of legislation.”
There is also some confusion as to the new Section 21 form.
While it must be used for all tenancies in England that start on or after October 1, it can be used for tenancies that started before that date.
However, many of the new pre-conditions will not apply to pre-existing tenancies.
In addition, the new form of notice cannot be used if the property requires a licence but is unlicensed.
Rajeev Nayyar, of Fixflo, said: “While ostensibly this refers to HMO licensing, the non-specific wording may hint at a wider licensing regime to be introduced in the future.
“These are a complex set of changes being introduced without any meaningful guidance for the industry.
“Unlike other changes that have recently affected lettings businesses, enforcement of the new rules will not come from a Governmental body and will instead will be driven by tenants not wishing to leave their homes and relying on the argument that the new processes have not been complied with.
The legislation is here
The guidance is here
