New mandatory section 8/13 forms
Note (29 September 2015): A new version of the prescribed form was enacted today, to take effect on 1 October. It fixes some of the issues listed below (our online store is up-to-date).
Section 21 notices related to ASTs created from the 1st October onward will be required to be in a prescribed form (available from our online store). Not using the prescribed form will invalidate the notice.
The prescribed form is essentially a standard section 21 notice template with the same wording but with a lot of guidance added.
It is difficult to see the benefit of this form but landlords will not have a choice.
Going through the new form, I have picked up quite a few issues:
- Section 2, which contains the crucial wording, does not include a saving clause.
Whilst the Deregulation Act removes the requirement that the date for notices under s.21(4) must be the last day of a period of the tenancy, the requirement that the date not be earlier that the expiry date of a notice to quit (which must be the last day of a period of the tenancy…) remains. Therefore it would certainly have been useful to include the standard saving clause.
- Section 3, which serves no other purpose than to inform the tenant that the notice is only valid for a limited time, is in fact incorrect.
It states that for periodic tenancies the notice is only valid for four months from the date of issue. This is simply not the case.
There is limit of four months after expiry, but it does not even apply to all notices.
- The footnote (a 6-line footnote on a 2-page notice…) mentions the restrictions on the notice’s expiry date under s.21(4) when used during a statutory periodic AST. Nothing incorrect there except that it was established that one is not required to give notice under s.21(4) to seek possession during a statutory periodic AST. As such, most of the footnote is of no use except from potentially confusing landlords and tenants.
- Section 4 states that all joint-landlords must sign, unless signing with the others’ agreement, which is incorrect. Section 21 specifically states that a single joint-landlord may serve notice.
In fact, I am not aware of any requirement that a s.21 notice should be signed at all.
The form ends with guidances for tenants.
- The second bullet more or less repeat the footnote, and repeats the incorrect statement about the minimum notice period during a periodic tenancy.
On the plus side, confusion will only arise for tenancies with a period of more than a month, which are not common.
- The third bullet is about the new contentious (to say the least) right to a rent refund created by the Deregulation Act (see a previous post).
The wording of the statute is terrible and unclear, the wording of the guidance is equally bad as it somewhat suggests that the tenancy may just end at the expiry of the section 21 notice.
My conclusion is that this form is an example of writing too much in a legal document.
Perhaps it also shows that far from simplifying the no-fault possession procedure, the raft of changes introduced by the Deregulation Act make the requirements so complex and confusing that even the legislator is not clear about any of it.
Be prepared for a surge of invalid notices next year, and for new case law in the years to come as courts try to make sense of the poor drafting of the new legislation.
ASTs which started before the 1st October and statutory periodic ASTs which will start after that date following a fixed term AST which started before are exempt from using the prescribed form for 3 years and, in light of the above, should therefore avoid using it.
The topic was also discussed on NearlyLegal.
Lastly, note also that the prescribed form for section 8 notices will also change slightly (again!) on 1st October (the new version is available on our online store is up-to-date.