As an exclusive to PRSP members we are writing to you to update you on conversation we have been having with MHCLG. The Deregulation Act brought in a new section 21 notice from 1 October 2015, for all the tenancies created after 1 October 2015, including renewals. However, the rules specifically said they don’t apply to tenancies granted before 1 October 2015 nor to statutory periodic tenancy arising out of fixed terms granted before 1 October 2015. So far so good.
Section 41 deals with the implementation and says that section 33 to 38 and 40 apply to all assured tenancies from the 1 October 2018. There are no questions about section 33 to 36. 33 and 34 are about retaliatory eviction. 35 deals with the end date of the periodic section 21 being on any day in the month and 36 deals with not serving in the first 4 months, and section 40 deals with a pro rata refund if the tenancy is ended part way through a rental period, these will all apply to pre-October 2015 tenancies after 1 October 2018.
37 (prescribed form of section 21) and 38, the prescribed requirements (the gas safety and EPC requirements) are more difficult as they are dependent on rules being “prescribed”. These are in separate regulations and these regulations start by saying that they only apply to tenancies granted after 1 October 2015. Here is the problem. The law allows for prescribed rules and a prescribed section 21, but the regulations prescribing these things exclude pre-October 2015 tenancies. The section 21 notice currently prescribed clearly says it does not have to be used for pre-October 2015 tenancies, but it can be.
We have been engaging with MHCLG to understand if they planned to issue a new Form 6A and revise the regulations. They have written back to say they don’t intend that pre-October 2015 tenancies will have to use the new Form 6A from October this year, nor will the prescribed legal requirements be applied either (gas and EPC).
Section 39, the How to Rent Guide, was already excluded from pre-October 2015 tenancies.
This bomb shell will cause its own confusion. The market is expecting this change in notices from October this year and few will understand that because of the wording of the regulations, the rules will not apply from October. We are also concerned that courts may not understand this, so it may be necessary to be prepared to defend the actions taken. We had started suggesting that it may be safest to start using the Form 6A notice as any notice served now would go to court after 1 October 2018 and it might be safest to use the new notice. This new advice from MHCLG confuses all that.
We will have to see what advice MHCLG put out publicly in the next few weeks, and indeed, it is possible that at some future date regulations may be laid that bring the pre-October 2015 tenancies within the regime. We will obviously keep you updated but when we learned this news, completely contrary to what was expected, we felt we wanted to give you this update now.