How to Understand Which Section 21 Rules Apply From October 2018

From 1 October 2015, significant changes were made to section 21 Housing Act 1988 for tenancies in England. Some of these changes apply to all tenancies (including pre-October 2015) from October 2018, but not all of them.

Additional requirements were introduced whereby a section 21 notice (two months no fault notice) could not be served unless EPC, gas safety and How to Rent Guide have been given, amongst other things like retaliatory evictions. 

These changes were brought in by the Deregulation Act 2015, and The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.

The Deregulation Act states very clearly that upon commencement (1 October 2015), the rules only apply to tenancies in England granted on or after 1 October 2015 (including renewals). Then, the restrictions apply to ALL tenancies from 1 October 2018, and this includes tenancies granted before October 2015. The only exception is the requirement to provide the How to Rent Guide (because it didn’t exist before October 2015). 

This made sense because it effectively created a three-year transition period to get used to the rules for new tenancies before applying to all tenancies from October 2018. 

However, there is confusion about applying some of the rules from 1 October 2018 because of the regulations' wording, which gives details to some of the elements. 

To summarise, from October 2015, the following were introduced by the Deregulation Act 2015:

• new rules to prevent retaliatory evictions
• removal of the requirement to expire a section 21 notice under a periodic assured shorthold tenancy ‘after the end of a period of the tenancy’
• time limits when section 21 can be served from the time a new tenancy is granted
• a ‘use it or lose it’ provision after service of a section 21 notice
• a new ‘prescribed form’ which must be used when serving a section 21 notice
• compliance with specific ‘prescribed requirements’ before section 21 can be served
• the giving of prescribed information (how to rent guide) under any new tenancy
• repayment of rent apportioned daily where a tenant leaves as a result of a section 21 notice being served

Of those listed above, it’s clear from the legislation that the How to Rent Guide will not apply to tenancies granted before 1 October 2015 (as long as there is no renewal after that date). However, the following elements are less clear:

• a new ‘prescribed form’ which must be used when serving a section 21 notice
• compliance with certain ‘prescribed requirements’ (EPC and gas safety record) before section 21 can be served

The Deregulation Act clarifies that these two elements listed above will apply to ALL tenancies from 1 October 2018. However, the regulations which detail the prescribed requirements (The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015) state in regulation 1 that the rules apply to tenancies granted on or after 1 October 2015. 

There are provisions about a statutory periodic tenancy arising after 1 October 2015, but we don’t need to worry about that just for now. 

The regulations do not refer whatsoever to applying to ASTs granted before October 2015 - only that they apply to ASTs granted on or after 1 October 2015. 

To recap and summarise, the Act says that regulations detailing a new section 21 prescribed form and legal requirements that must have been completed before a section 21 are served to apply to ALL tenancies from 1 October 2018 (including those granted before 1 October 2015). But, the regulations detailing the new style form and legal requirements (EPC and gas safety) only apply to ASTs granted on or after 1 October 2015 (including renewals). 

Update 25 June 2021: Minister v Hathaway & Anor [2021] EWCA Civ 936 (23 June 2021) has settled this, and the EPC, gas safety and how to rent guide are not required to be given before serving a section 21 where the tenancy was granted before 1 October 2015.

Summary of each element

Let’s go through each element of the Deregulation Act and see its application to ALL tenancies (including ones granted before 1 October 2015) as of 1 October 2018.

Retaliatory eviction provisions

The retaliatory eviction provisions will apply to all assured shorthold tenancies in England from 1 October 2018, including those granted before October 2015.

Removal of requirement to expire notice “at the end of a period”

The need to expire a section 21 notice “at the end of a period” will apply to all tenancies from 1 October 2018, including those granted before October 2015.

Time limits when section 21 can be served and must be used

The provisions which limit service of a section 21 notice until after the first four months of a tenant first moving into a property and that the notice must be used within six months of service will apply to all tenancies from 1 October 2018, including those granted before October 2015.

New prescribed section 21 form

There is no benefit to using an old-style form from 1 October 2018. The new prescribed form clarifies in its notes that it can be used for tenancies before October 2015 if a landlord wants to. It just might not be legally required as the rules are currently written.

Compliance with legal requirements before serving a section 21

Update 25 June 2021: Minister v Hathaway & Anor [2021] EWCA Civ 936 (23 June 2021) has settled this, and the EPC, gas safety and how to rent guide are not required to be given before serving a section 21 where the tenancy was granted before 1 October 2015.

How to rent guide

Update 25 June 2021: Minister v Hathaway & Anor [2021] EWCA Civ 936 (23 June 2021) has settled this, and the EPC, gas safety and how to rent guide are not required to be given before serving a section 21 where the tenancy was granted before 1 October 2015.

Return apportioned rent if the tenant leaves as a result of section 21

This provision will apply to all ASTs from October 2018, including those granted before October 2015.

Statutory periodic tenancy

We mentioned briefly above statutory periodic tenancies arising at the end of a fixed term AST. To clarify, there are also provisions in the Act and Regulations about a statutory periodic tenancy arising on or after 1 October 2015 concerning a tenancy granted before that date. 

This is overly confusing to add to each element above. A statutory periodic tenancy that arises on or after 1 October 2015 (which is technically a new tenancy) is effectively ignored by the rules and is treated as though it was a tenancy granted before 1 October 2015.