The additional obligations only apply to ASTs which commenced on or after 1 October 2015. However, these obligations will operate retrospectively and apply to all ASTs from 1 October 2018. It is important that landlords are aware of these additional obligations because a failure to comply with them can prevent a landlord serving a valid section 21 notice on the tenant, seeking possession of the property.
It is already the case that, where a tenant has paid a deposit under an AST, the landlord must protect the deposit in a tenancy deposit scheme and provide the tenant with 'prescribed information', which consists of information about the scheme. It is not possible for the landlord to serve a valid section 21 notice until this requirement has been satisfied. A failure to comply with this requirement can also result in fines for the landlord.
It is also worth being aware that if you are renting out a House in Multiple Occupation (a 'HMO') which is a property at least 3 storeys high, with at least 5 tenants living there forming more than 1 household and sharing a toilet, bathroom or kitchen facilities with other tenants, this must be licensed. A failure to obtain a licence will prevent a landlord from being able to validly serve a section 21 notice.
The new legislation provides that the landlord will be unable to serve a valid section 21 notice if the landlord fails to provide the tenant with a copy of any of the following documents (if applicable):
There is now a further obligation on landlords with the aim of preventing retaliatory evictions. If a tenant has made a written complaint to the landlord regarding the state of the property, the landlord will not be able to serve a valid section 21 notice where:
(a) they have failed to respond within 14 days
(b) they have responded but inadequately, or
(c) they serve a section 21 notice in response to the complaint
In addition, a tenant can subsequently make a written complaint to their local housing authority who in turn can serve an enforcement notice on the landlord. If a landlord serves a section 21 notice after the tenant has made a written complaint to their local housing authority, it will be invalid.
A further change is that a section 21 notice can no longer be served within the first 4 months of an AST regardless of the expiry date in the notice.
As the number of hurdles preventing landlords serving a valid section 21 notice increases, it is increasingly important that landlords are alive to these existing and new obligations. A failure to comply with these technicalities can potentially cause significant delays when trying to gain vacant possession of a property. Further changes have been made, including the prescribed form of section 21 notices, but these are outside the scope of this article.