This section makes retrospective amendments to the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (“the prescribed information order”). The prescribed information order was made under section 213 of the Housing Act 2004 and prescribes the information which must be provided to tenants when a deposit has been protected. Failure to send the correct information to the tenant within 30 days of the deposit being received can result in penalties for the landlord and/or letting agent.

The amendments to article 2 of the order make it clear that each of the references to “the landlord” in the order are to be read as references to either the landlord or the letting agent where relevant. This means an agent can sign and serve the prescribed information on behalf of the landlord.

This section amends sections 214 (proceedings relating to tenancy deposits) and 215 (sanctions for non-compliance) of the Housing Act 2004 to clarify that no matter when a tenancy deposit was last “paid” the landlord will need to protect that deposit and serve the prescribed information if he or she wishes to serve a valid notice under section 21 of the Housing Act 1988 on the tenant (unless the deposit has already been returned to the tenant in full or with agreed deductions).

Cases where a tenancy deposit was received in connection with a fixed term tenancy prior to 6th April 2007 and you continue to hold that deposit against a statutory periodic tenancy which also started before April 2007, you do NOT need to protect the deposit. However, if you wish to gain possession of the property using notice under Section 21 of the Housing Act 1988, the deposit must be protected and the Prescribed Information issued to the tenant prior to you serving the Section 21 notice. You will not face any financial penalties for non-protection of the deposit.

Section 215B applies to cases where a tenancy deposit was received in connection with a assured shorthold tenancy on or after 6th April 2007. Instead of the landlord being required to comply with the tenancy deposit requirements at the start of the statutory periodic tenancy, there is an extended period of 90 days from 26 March 2015 ending 23 June 2015 (or before the Court hearing to determine a tenant claim for compensation or to determine the landlord’s claim for possession under s.21, whichever is the earlier) to protect the deposit with an authorised scheme and serve the required prescribed information.

If as a result of the Deregulation Act a tenant loses an existing claim (started prior to 26 March 2015) relating to deposit protection or loses their challenge to a section 21 notice, the court will not order the tenant to pay the landlord’s costs. If the landlord is compliant possession will be granted.

If you took a deposit on an assured shorthold tenancy after 6th April 2007 and correctly protected and served the Prescribed Information to the tenant, you do not need to reissue the Prescribed Information to the tenant on future renewals of the AST or where the AST rolls into a statutory periodic tenancy so long as the tenancy details have not changed (i.e. landlord, tenant and property information) and the deposit remains in the same tenancy deposit protection scheme. This applies not just to the first “renewal” of the tenancy but also to cases where there are multiple tenancy renewals, which could include a mixture of fixed term tenancies and periodic tenancies.

In cases where, at the time this section is commenced, the landlord no longer holds any deposit in connection with the periodic tenancy or the tenancy has ended, the landlord will be treated as having complied with the requirements in section 213 of the 2004 Act.

Sections 33 - 40 come into force on 1st October 2015.

These sections apply to assured shorthold tenancies granted on or after the day the sections come into force (but excluding periodic tenancies that arose after the coming into force of the sections, where the original tenancy was granted before the sections came into force).

However, once a provision has been brought into force it will apply to all assured shorthold tenancies, whether granted before or after the commencement day, three years after the provision comes into force.

Overview
This section provide protection for tenants against retaliatory eviction, where tenants are suffering from poor or unsafe property conditions. If your tenancy started before 1 October 2015, there's no special protection that prevents your landlord evicting if you complain about repairs. Rules that could protect you from retaliatory eviction won't apply unless you start a new tenancy or sign a renewal contract from 1 October 2015. Otherwise, you'll have to wait until 1 October 2018 to benefit from the new rules.

The policy rationale for the changes is to prevent tenants from feeling unable to complain about poor property conditions because they fear eviction. The government also intends that the legislation should encourage landlords to keep their property in a decent condition and to comply with all legal obligations placed upon them, in order not to lose their right to rely on section 21.

The changes that are made to the section 21 procedure aim to make the eviction process more straightforward for both landlords and tenants. The sections do not make any changes to the eviction procedure contained in section 8 of the Housing Act 1988.

Invalid S21
A section 21 notice given is invalid if before the section 21 notice was given the tenant had made a complaint about the condition of the property to the landlord, the landlord did not provide an adequate or timely response to the complaint or served a section 21 notice on the tenant and the tenant then contacted the local housing authority (LHA) about the matters raised with the landlord. The LHA then served a relevant notice in relation to the property.

Tenant’s Complaint Requirements

• The requirement for a tenant’s complaint to be in writing does not need to be met where the tenant does not know the postal or email address of the landlord.
• The requirement for the tenant to complain to the landlord in the first instance and to allow the landlord 14 days to respond, does not apply where the tenant made reasonable efforts to contact the landlord to complain but was unable to do so.

Court Proceedings

• If a relevant notice by the LHA was served before the order for possession is made the court must strike out proceedings for an order for possession under section 21.
• If the service of a relevant notice is received after an order for possession has been made it does not provide grounds for the setting aside of the possession order and the order will stand.

Reserving S21 after Relevant Notice Served
When a landlord has been prevented from obtaining possession under these circumstances, the landlord may serve a fresh section 21 notice, but AFTER six months from the date of the relevant notice from the LHA to regain possession.

Exemptions
There are certain exemptions from the measures to prevent retaliatory eviction:

• The tenant complains verbally or the landlord serves a section 21 notice before they complained to them in writing
• The tenant complains to the council but it takes no action or serves the landlord with a 'hazard notice'
• Due to the tenant’s breach of their duty to use the dwelling in a tenant-like manner
• Where the disrepair is due to the tenant’s breach of their duty and obligations as set out in the AST
• Where the landlord has a genuine intention to sell their interest in the dwelling to a person that they are not associated with
• Where the landlord is a private registered provider of social housing and where a mortgagee needs to be able to exercise their power of sale with vacant possession

A section 21 notice is valid if your landlord gives it to you after the council serves your landlord an improvement notice but suspends enforcement action. The council may decide not to enforce the notice if there aren't any young children or anyone over the age of 60 in your home.

This section removes the requirement that the expiry date specified in a S21(4) notice be the last day of a period of the tenancy.

Notices
Notice under a section 21 may not be given within the period of four months beginning with the day on which the tenancy began with the exception of periodic tenancies arising at the end of a fixed-term tenancy.

Court Proceedings
Proceedings for an order for possession may not be begun after six months from the date of service of a S21(1) notice or six months from the date specified in a S21(4) notice. Meaning a S21 will only be valid for a period of 6 months and court proceedings must commence within that period as after which it can no longer be relied upon.

This is contrary to the current view that a S21 once served is valid indefinitely.

This section provides the Secretary of State with the power to prescribe legal requirements imposed on landlords by law (such as the condition of dwellings or their common parts, the health and safety of occupiers of dwellings, the energy performance of dwellings) and providing of prescribed information regarding the rights and responsibilities of a landlord and tenant. The landlord is prevented from serving a section 21 notice until the landlord has complied with the relevant legal obligation and the prescribed information has been provided to the tenant.

A detailed explanation of this Regulation is available here

Rent is to be repaid to the tenant in the situation where a tenancy is brought to an end under section 21 before the end of a period of the tenancy for which the tenant has paid rent in advance. The tenant is entitled to repayment of an amount of the rent they have paid to the landlord, calculated pro-rota for days they will not be occupying the property.

If the repayment of rent has not been made when the court considers whether to make a possession order under section 21, the court shall order the landlord to pay the amount of rent to which the tenant is entitled.