Is Section 21 'valid' if out of date 'How to Rent Guide' was provided ahead of AST

Tenant Discussion
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Hello
In checking into the legality of a Section 21 Notice recently received, we note that when we signed the AST, we were provided with both a copy of the same and also what was at the time of signing, an out of date version of the ‘How to Rent’ guide. The ‘How to’ guide we were provided with was that dated July 2018, not the May 2019 update in place when the AST was signed in June 19.

The Section 21 was accompanied by the May 2019 ‘How To’ version that we should have been provided with in the first place. Naturally this is also out of date, not being the August 2019 version. Irrespective, surely it is not sufficient for a landlord to be seen to discharge their responsibilities in terms of validly serving a Section 21, by providing documents that should have been provided on day 1, 10 months down the line post the AST commencing?

Further, even if it is permissible for documents to be provided post AST date, surely they must need to be the up to date versions anyway?

We believe that in light of the above, a valid Section 21 has not been served.

Thoughts very much welcomed.

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Hi Iain, is the following an accurate summary of your question?

If a landlord loses the ability to serve a valid S21 notice due to not serving the correct How to Rent guide, then can a landlord recover their power to serve a a S21 notice by subsequently serving the up-to-date How to Rent guide mid-tenancy?

If so I can try and find an answer to you.

Sam

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Thank you Sam.

Yes, I would say your summation of my question is sound.

Look forward to your thoughts.

Thank you.

Regards

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OK thanks. In that case, it sounds like the Section 21 could indeed be invalidated by failure to serve the How to Rent booklet, since you have never been served an up-to-date version of the booklet.

See page 2 here.

Sam

1 Like
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Thank you for Sam.

The flowchart makes for interesting reading, though as the Tenancy started mid June 2019 I’ll need to work through Page 1 first to see if it is invalid there too, rather than start on page 2.

Outcome will be the same though anyway I suspect - even if payments were correctly sought looking at the right hand box on page 1, that invites you to move page 2 where the S21 fails as not the latest at any point.

Thank you for your assistance. I’ll see where this gets us and, if I may, comeback to you any follow on questions arise.

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the How to rent guide has to be the latest one or the judge can throw it out of court

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Hi Iain,
the government doesn’t always “issue” the updated versions on the 1st day of the month of publication stated.
I’ve attached a link to a “Nearly Legal” guide - I do recall there were a couple of “VERY minor” changes, which meant “versions” issued in close proximity to each other; probably when the govn’t dept. changed from DCLG (Dept. of…) to MHCLG (Ministry of Housing, Communities and Local Government).


Rgds, Sue

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Sorry, Iain, looks like link didn’t open correctly - full text reads …
‘How to Rent’ Archive

Archive of the MHCLG ‘How to Rent’ booklets. The booklet must be served on the tenant before a section 21 notice can be served for all new and replacement tenancies from 1 October 2015. If the booklet was previously served, then at the start of each ‘replacement’ tenancy, there is no requirement to re-serve the booklet unless it has been updated .

As the MHCLG and Gov UK site apparently will not be providing a method to check which version of the handbook was current at a given date, which will actually be crucial for checking whether a s.21 has been validly served, we will try to catalogue them here, by release date.

1 October 2015 – Download here.

1 February 2016 – Download here

17 January 2018 – Download here

26 June 2018 – Download here

6 July 2018 (‘backdated’ to 26 June 2018) – Download here (An explanation of what happened is here)

31 May 2019 – Download here

Since 31 May 2019, there have been two ‘silent’ changes to the guide – hidden by MHCLG and still both billed as ‘v.4’. MHCLG really shouldn’t do this, given the significance of the document. The gov.uk page still says last updated 31 May 2019.

3 June 2019 – download here – (changing the reference and link on page 5 from “NALS” to “Safeagent”)

29 July 2019 – download here – (changing the wording on page 4 from “If you don’t have a guarantor, you can ask Shelter for help.” to “…ask Shelter for advice.”)

[Update 15 August 2019 – the current ‘How to rent’ guide pdf remains dated ‘May 2019’ at the bottom. This may well be a cause of confusion, for example for tenants thinking they have not received the latest version. Unfortunately, the only way to check is to look at the text on page 4 and 5 to see if it includes the two changes.]

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Thank you Sue… that is very interesting. I’d noticed the MHCLG www makes reference to the more recent changes not generating a new version, but not fully appreciated the implications of this. I’ll check the version we were provided with alongside the S21 to see if those changes are there.

I’l ignore the version provided ahead of our 6th June signing of the contract, as that was the July 2018 version so can safely be ignored.

Thanks for your providing such detailed guidance. The S21 process is certainly proving more complicated that it probably should be!

Regards

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Hello Sue. I’ve checked the May 2019 version which accompanied the S21, and it does indeed contain the 2 minor updates you highlighted. So it is the latest. Which is annoying! I’d rather know now though … so thank you for your advice. Extremely useful under the circumstances.
Rgs
iain

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Hi Iain, my personal opinion is that Civil Service depts. generally, these days, are not of the calibre they used to be (I was one!). Obviously, no one proof-reading or correcting, what would be, obvious errors before publication.
I went into the guide on gov.uk today and have submitted my comments under the “Is there something wrong with this page” section - to

i) let them know that there’s nothing in their link re: “see all updates” of the guide and

ii) to ask them what the difference/s is/are between the 29/7/19 (silent) version and the 7/8/19 update (which, as Nearly Legal say, STILL shows the May 2019 date at bottom of Pg. 2 on the pdf version - 9 months afterwards!

I’ll wait for any (personal?) response (:)(:). KR’s Sue

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Guessing you’ve got no other routes you could use? Did your LL correctly provide you with all the other required docs at the outset, Iain? In the recent court case (Trecarrell v Rouncefield) the Judge ruled that, where a LL hadn’t issued the Gas Safety Cert. BEFORE the Tenancy began, the LL could, therefore, NEVER issue that tenant with a Sec. 21. Mind you, the LL has been given the right to appeal it (which I personally agree he should) - seemed over-zealous on Judge’s part, on his interpretation of the law .

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Hello Sue… I thought I’d update you given your very helpful advice on our Section 21 issue.

We have decided to move rather than contest any part of the Section 21/Notice point… tempting as it is to do so given the adherent behaviour of the landlords… and have now signed up to a new rental through a large and respectable letting agency. Lo and behold, the ‘How to Rent’ document provided to us is also not the latest version… seems to be standard practice for many agents and indeed landlords to circulate the wrong documentation!

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Hi Iain,
apologies for late acknowledgement! I only read this site when Open Rent issue their emails
:slight_smile:.
I’d be like you - you just want fair play, hence wanting to pursue it initially.
Whilst you’d expect all Agents and LL’s to be abreast of latest statute, I’m afraid that reality means otherwise! As a LL of just 1 property, I try to be as responsible as possible and subscribe to the NRLA (plus various other, inc’g Govn’t) sites in order to. become aware of changes/updates - but even then, I, too, learnt at the same time as you re: the “silent” versions - when I 'came across 'the Nearly Legal site! .If the Govn’t aren’t disseminating/highlighting changes widely.? …
N.B. The decision has just come out on the Trecarrell v Rouncefield case I’d mentioned (re: timing of issue of Gas Safety Cert by LL when seeking to issue Sect. 21) -
“The Court of Appeal however has today ruled that Section 21 notices are valid provided a Gas Safety Certificate is issued before the notice is given to the tenant, not before a tenant moves into a property.”.
I do wish you well going forward - if all tenants were as fastidious as you, then maybe more LL’s would be brought to account when applicable. Best wishes! Rgds, Sue

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Lian,
Could I ask why your landlord has served a section 21.