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October 2018 sees some important changes
Mathew McDermott, Head of the Housing Group at 42 Bedford Row, picks out some important changes and events in the residential landlord and tenant field coming up in October 2018.
This 1st of October, like many before it, sees the coming in to play of a number of changes that will be of interest to those working in social housing and residential landlord and tenant matters. These are some of the more important ones, starting with the changes introduced from 1st of October 2018 by virtue of section 41(3) Deregulation Act 2015 (“The 2015 Act”).
Preventing Retaliatory Eviction
For assured shorthold tenancy agreements granted in England on or after 1st October 2015, a landlord’s ability to serve a valid section 21 notice – and, as a consequence, the ability to obtain possession pursuant to such a notice – has been restricted where certain complaints have been made, or notices served, concerning the condition of the dwelling-house. See sections 33 and 34 of The 2015 Act. Thus far the restriction has been limited to assured shorthold tenancies granted on or after 1st of October 2015, including statutory periodic tenancies that followed tenancies granted before. However as of 1st of October 2018, by virtue of section 41(3) of the 2015 Act, the same restriction with regards serving section 21 notices will also apply to an assured shorthold tenancy in existence at that time, whether it be statutory periodic or not.
Section 21 notices
For assured shorthold tenancies in England granted on or after 1st of October 2015 it has not been possible to serve a valid section 21 notice within the first four months of the tenancy, and as of 1st of October 2018 this will also — with no practical implications, of course — apply to those pre- 1st of October 2015 tenancies. Of more practical application is that as of 1st of October 2018 the six-month lifespan of a section 21 notice will also apply to assured shorthold tenancies granted prior to 1st of October 2015, meaning proceedings for possession pursuant to a section 21 notice cannot be commenced once six months has elapsed since the date the notice was given.
On top, whilst within the housing law field there have been rumblings to the contrary, in relation to tenancies in England it seems both right and undoubtedly sensible to use the prescribed S.21 notice for all assured shorthold tenancies as of 1st October 2018. See form no. 6A as contained in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015/1724.
Gas Safety Records and Environmental Protection Certificates (“EPC”)
For assured shorthold tenancies in England granted on or after 1st of October 2015, landlords have not been able to serve a section 21 notice if they had failed to comply with a “prescribed requirement” as set out in what is now s.21A Housing Act 1988 (provision of a Gas Safety Record prior to occupation and provision of an EPC). Moreover, the County Court case of Caridon Properties Ltd v. Monty Shooltz (unreported) February 2018, has thrown the cat among the pigeons, as it suggested that landlords will be prevented from recovering possession under S.21 for having failed to provide their tenants with gas safety certificates prior to occupation.
There is a strong argument to suggest that where pre-1st October 2015 tenancies are concerned, until Regulations are passed to incorporate such tenancies, the failure to have provided the tenant with an EPC or Gas Safety Record prior to the service of any S.21 notice will not invalidate the S.21 notice. The reasoning behind this argument is that the Regulations currently in force expressly apply only to tenancies granted on or after 1st of October 2015. Clearly this will be tackled one day by the Courts, but equally clear is the fact that a prudent landlord would not want to run the risk and would surely comply prior to the 1st of October 2018 just in case.
There is no change in relation to the ‘How to Rent’ Guide. That is introduced via s.39 of the 2015 Act, which is not one of the provisions caught by s.41(3).
Section 40 of the 2015 Act concerning the repayment of rent where a tenancy ends before the end of the period is the final provision affected by s.41(3).
Changes to Cardiff v Lee  EWCA Civ 1034
As of 1st of October 2018 the Civil Procedure Rules will be changed (CPR 83.2(3)(e)) so that there will not be a need to make an application for permission for a warrant where the breach of the suspended possession order is the failure to pay money. This will still be subject to the usual rule that an application is required if the order is more than six-years-old.
Mandatory licensing of HMOs
Local authorities have a power to authorise the licensing of properties defined as an ‘house in multiple occupation’. From 1st of October 2018, however, the mandatory licensing requirements will no longer be limited to certain HMOs that are three or more storeys high and will, instead, include certain buildings with one or two storeys. See this change, and others, in The Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018/221.
On the Statutory Horizon…
October 2018 sees a fair bit of Parliamentary attention given to housing-related Bills. This is just a selection.
The Homes (Fitness for Human Habitation) Bill aims, amongst other things, to impose an implied covenant requiring that residential accommodation rented out is, firstly, fit for human habitation either at a time when the lease is granted/created or, if later, at the beginning of the term of the lease, and, secondly, to remain fit for human habitation during the term of the lease. If passed, this would lead to amendments to the Landlord and Tenant Act 1985. It is due for consideration at Report stage in the Commons on 26 October 2018.
Perhaps the most well-known is the Tenant Fees Bill, which aims to prohibit landlords and agents from requiring tenants to make certain payments (amongst other things). It is a Government Bill introduced in response to a perception that tenants have to pay too much for numerous services, both upon moving in and when renewing any tenancy. It gets its second reading in the Lords on 10 October 2018.
There is also the Private Member’s Bill, Sublet Property (Offences) Bill. There was no debate at the first reading and the text is not yet published, but it aims to criminalise the breach of certain rules relating to the sub-letting of rented accommodation. It is due to have its second reading in the Commons on 26 October 2018, by which point more will presumably be known.
Mathew McDermott is the Head of the Housing Group at 42 Bedford Row. He specialises in landlord and tenant matters, both residential and commercial.
DISCLAIMER: This bulletin is no more than a summary of the topic or topics, chosen selectively for the purposes of discussion only. It is not legal advice and should not be treated as such. It should not be relied or acted upon in any respect. Recipients should always seek legal advice if proposing to take action following this commentary.