Property Litigation Experts React As Introduction Of Legislation Approaches

Specialist property litigation lawyers have described the Deregulation Act 2015 as one of the biggest changes to residential landlord and tenant legislation in recent years, but warned that its introduction may lead to “teething problems”.

Set to come into force from October 1st this year, the legislation provides clarification on the steps landlords in England must take to comply with the Tenancy Deposit Scheme and also introduces new measures around when a landlord can serve a section 21 notice to gain possession of a property.

One particular area affected relates to when such notices are served before or after a complaint made regarding an aspect of the property being in disrepair.

According to Irwin Mitchell’s specialist Property Litigation team, the changes are set to have a significant impact on both landlords and tenants.

Expert Opinion

“The introduction of these provisions into the Deregulation Act is one of the biggest changes in residential landlord and tenant legislation for a number of years. As with the introduction of tenancy deposit schemes, we are likely to see teething problems with the interpretation of legislation.

“Landlords should be wary of any existing repair related issues in a property, as there could be instances where future tenants look to invoke the legislation so that a landlord is unable to obtain possession of the property from them.

“The purpose of the legislation is to bring housing stock in the private rental market up to a decent standard and so it will be interesting to review the effect that this legislation has upon achieving that goal.” Joanne Mills - Associate

Under the changes, if a section 21 notice is served prior to a complaint regarding disrepair in the property being made then it will be held to be valid. 

However, if a section 21 notice is served following the receipt of a written complaint then, for the notice to remain valid, a landlord must have provided an adequate written response to the tenant’s complaint within 14 days of receipt of the complaint. 

In addition, the tenant cannot have complained to the local authority.  If it does, the section 21 notice will be invalid.  It is also important to note that a written complaint to a landlord’s managing agent is deemed to be a complaint to the landlord.

For a response by the landlord to be adequate, it must:

1. set out details of the landlord’s proposed action to deal with the complaint;

2. and provide a reasonable timetable in which to resolve the complaint.

The landlord’s action may satisfy the tenant and the issue may be deemed dealt with at that point.

Expert Opinion

“The biggest potential issue comes from the subjective requirement for the landlord’s response to a tenant’s complaint to be “adequate”, which means that we are likely to see a number of disputes in the courts as to what ultimately meets that definition.

“If the landlord’s response does not resolve the issue, or is deemed to be inadequate, the tenant may make a written complaint to the local authority on substantially the same issues.

“Following the tenant’s complaint to the local authority, the local authority may serve an improvement or emergency remedial notice upon the landlord. If the local authority does decide to take action and serve a notice upon the landlord, then the landlord is unable to serve a section 21 notice for a period of six months.” Joanne Mills - Associate

During these six months, a local authority may serve upon a landlord an improvement notice in relation to a category 1 or category 2 hazard or an emergency remedial action notice.  Examples of a category 1 hazard are inadequate heating, faulty fire alarms or a leaking roof affecting vulnerable tenants. 

Category 2 hazards are less serious issues and the local authority is likely to issue guidance in relation to solving them.  An emergency remedial notice is likely to be served where a category 1 hazard presents an imminent risk of serious harm.

There are exceptions to this, where:

1. the notice was given by the local authority in error; or

2. the notice is overturned following an appeal.

On the timing of Section 21 notices, Joanne added that from 1 October 2015 it will no longer be possible to serve a section 21 notice within four months of the commencement of a tenancy. 

Expert Opinion

“This does not apply to statutory periodic tenancies – ie. tenancies where the fixed term has ended and the tenant has remained in occupation.

“In addition, a section 21 notice can, from 1 October 2015, only be relied upon for six months from the date of the notice or four months after the date by which possession is required.

“Parliament has also legislated that there will be a new prescribed form of section 21 notice and this change is anticipated shortly. The effect of this is that all section 21 notices will have to be in this prescribed form in the same way as a section 8 notice must be in a prescribed form.

“Further, it will no longer be a requirement for a notice to expire on the last day of a period of a tenancy.” Joanne Mills - Associate

For help and advice on property disputes for both residential and commercial properties, contact our business legal services team on 0370 1500 100, or visit our Property Litigation page for more details.