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New section 21 requirement: prescribed information booklet

From the 1st October, the use of section 21 notices for new assured shorthold tenancies in England will be subject to additional requirements (following new section 21A added by the Deregulation Act).

Landlords will be required to have complied with EPC and gas safety regulations, and to have given the tenant new prescribed information in order to be able to serve a valid notice.

The new prescribed information, not related to the prescribed information on tenancy deposits’ protection, is a booklet entitled “How to rent: the checklist for renting in England” available here.

The actual requirement is in section 3 of SI 2015/1646:

3.—(1) A landlord under an assured shorthold tenancy of a dwelling-house in England, or a person acting on behalf of such a landlord, must give the tenant under that tenancy the information mentioned in paragraph (2).

(2) The information is the version of the document entitled “How to rent: the checklist for renting in England”, as published by the Department for Communities and Local Government, that has effect for the time being.

Landlords will be able to provide a hard copy, or copy in electronic form by e-mail (and no other electronic way) if the tenant has agreed to receive such document that way.
Note that just having the tenant’s e-mail address is not enough, a landlord must have it in writing that the tenant explicitly agrees to receiving documents by e-mail.

An additional caveat highlighted by Ian Narbeth on Property118 is that as the booklet must be given by the landlord to the tenant it cannot be given before the tenancy has started since, in the strict legal sense, there is no landlord or tenant until this occurs.

Where it really gets mad is that every time a replacement tenancy is created the landlord should give a new copy of the booklet if the version in effect on the first day of the new tenancy is a new version:

(5) This regulation does not apply—

(a) …

(b) where—

(i) the tenancy (“the new tenancy”) is a replacement tenancy;

(ii) the landlord, or a person acting on behalf of the landlord, provided the tenant with the document mentioned in paragraph (2) under an earlier tenancy; and

(iii) the version of the document provided to the tenant under the earlier tenancy is the same version as the version which is in effect on the first day of the new tenancy.

A replacement tenancy is as per section 21(7) and is any tenancy between the landlord and the tenant, for the same premises, coming into being following an initial tenancy.
This therefore includes statutory periodic ASTs, renewal fixed term ASTs, contractual periodic tenancies… The lot.

However, there is no deadline to comply, so in principle and as long as the landlord can determine the relevant document’s version the document could be given along the s.21 notice itself… Which in my view shows the uselessness of this new requirement.

Good luck to all with this new requirement. It would seem that landlords will have to watch out for many pitfalls (traps?) and to visit the website to get a copy of the document on the day new tenancies are created…