New ‘How to Rent’ guide, and errors in the new form 6A prescribed for s.21 notices
A short-form article on some of the requirements to serve a valid section 21 notice for assured shorthold tenancies (ASTs)
[Extent: England]
There are a number of requirements which landlords must comply with if they want to serve a valid s.21 notice. If they fail to comply with them a tenant might be able to raise a defence that the notice they have received is not valid. This can buy them essential extra time to either resolve rent arrears or any other issues which may have led to the decision to seek possession, or to seek alternative housing. A full list of the defences to a s.21 notice is available here, and in this article we will examine two recent updates.
A new ‘How to Rent’ Guide was published on 31st May 2019 reflecting changes introduced by the Tenant Fees Act 2019. For new and replacement tenancies arising after 1 October 2015, the guide must be served before a section 21 notice can be issued. If the booklet was previously served, then at the start of each ‘replacement’ tenancy, there is no requirement to re-serve the booklet unless it has been updated. This update will mean that it is important landlords serve the correct version for new tenancies, and when renewing tenancies which pre-date the guide.
The Government has also issued a statutory instrument to introduce a new form 6A, which must be used when serving a s.21 notice for all tenancies arising after 1 October 2015 (the form is thought not to be required for tenancies arising before that date, although the law is not entirely clear on this — please see our October 2018 update for further details). The new form incorporates changes to recognise the restriction of use of s.21 where there is a breach of Tenant Fees Act 2019 and also provides some brief information about duties under the Homelessness Reduction Act 2017, and is required for notices served after 1 June 2019. A number of errors have been noted in the new form, which may mean that we see a further reissue sooner rather than later.
What are the errors?
Firstly the form prescribed by statute contains a typo within the notes on ‘Information for tenants who have received this notice and are concerned they may be at risk of homelessness’ — it refers in the text to a risk of ‘becoming homelessness’, which is clearly an error. The version published by the Ministry of Housing Communities and Local Government (MHCLG) corrects this typo.
Of greater concern is the footnote to page 3 of the form (consistent on both the version prescribed by regulations and the MHCLG version). This states that “where landlords are seeking an order for possession on a statutory periodic tenancy under section 21(4) of the Housing Act 1988, the notice period should also not be shorter than the period of the tenancy (up to a maximum of six months)”. The use of the word ‘statutory’ is an error here — the requirement to serve notice not less than the period of the tenancy in accordance with S.21(4) HA 1988 actually applies only to contractual periodic tenants.
What do they mean?
The correction of the typo from the statutory instrument does mean that any landlord using the MHCLG version is not technically using the form prescribed by regulations, as required by s.21(8) Housing Act 1988 — this is unlikely to provide any defence in possession proceedings on the basis that the use of the prescribed form is subject to a “substantially to the same effect” savings clause.
The error in the footnote referring to ‘statutory periodic’ tenancies could have greater implications for validity — for example, the landlord of a contractual periodic tenant with a quarterly tenancy might serve insufficient notice on the basis of failing to recognise that the footnote actually applies in their case. In other cases however, this error is unlikely to affect validity — notice served on a statutory periodic tenant would not be invalidated by giving more notice than actually required, and the requirement to use the form prescribed by regulations (complete with errors) would be met.
What should advisers do if a notice appears invalid?
It is important to remember to check all of the defences which may apply to a s.21 notice (see the link to our checklist in the first paragraph). If errors are spotted which appear to invalidate the notice, then it is a tactical question as to whether the client refers the landlord to these immediately, or whether they prefer to await a court claim by the landlord and then raise the issues in the defence form. The court have no power to dispense with the requirements for s.21 notices, and so any invalidity should result in the claim being dismissed. The landlord may reserve the notice if they are able to rectify any non-compliance.
Amy Hughes works in the Housing Expert Advice Team at Citizens Advice.
