‘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

The new government publications come after EYE published legal guidelines (see our next story) which in the absence of official guidance has not surprisingly achieved one of our highest-ever read counts.

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 difficult, 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

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9 Comments

  1. Will

    It appears to me that it is the intention of Government to introduce so many “Legal Trip Hazards” to prevent landlords from using the old s21 procedures to gain possession of their properties; which is the very tool which brought back a Rented Market following the 1970’s rent control that catastrophically screwed up the rental market through the 70’s and 80’s.  Landlords usually only want possession if they have a bad tenant so this is all overkill and eventually overkill that may once again kill the rented sector.

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  2. seenitall

    8 page colour booklet for tenants –  great.    Can we email it to them?   I think thats the best way if they must have it.

     

    Blimey they dont make it easy for agents do they.

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    1. MF

      Especially as the very vast majority of them are NOT going to read it.

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  3. MF

    Thank you government. Knock it out as quick as you can and don’t give us much time to get our heads around it either. Plenty of opportunities once people as tenants down the line…

    I’ll read the legislation and guidance as soon as I can, but I’ll say straightaway that I do hope there’s a contingency for the new tenancies starting after September that have already been signed up.

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    1. MF

      Sorry – “Plenty of opportunities once people as tenants down the line…”

      should be: “plenty of opportunities for unscrupulous tenants down the line…”

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    2. Will

      That’ll be the Con is conservative then!

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  4. devonagent

    So now we need to print off a leaflet on tenancy deposits, an epc and a leaflet on how to rent. Surely this increased use of paper for each tenancy will have a detrimental effect on our environment, and if the government doesn’t care about the environment can we be rid of EPCs?

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  5. Will

    This document will be like the EPC where virtually no one is interested and as others have said it will not be read. Until, of course, some smart lawyer (or local authority avoiding its statutory obligation to house people) uses it to prevent use of s21. Government setting more traps for the unsuspecting landlord.

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  6. GH1st

    Great, more paperwork to print off, more time for us to spend sorting paperwork, more new legislation to try and implement without any proper guidance – and people want to ban letting agent fees? They’ll be going up at this rate

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