Pre-2015 agreements and Section 21

Landlord Discussion
1

Hi there,

I help manage a sole letting for my mother. Her health is deteriorating and she now wants to sell. A shorthold tenancy agreement was entered into by the tenant in 2012 and they have lived there all this time.

We have indicated to the tenant our wish to sell the property and have given them notice to leave by way of a sec 21 notice back in the summer of last year. This was an open discussion with the tenant as the local council pays the rent direct to my mother and the tenant felt that the eviction notice would be the only way they would be able to secure further housing from the local council (the tenancy agreement is directly between my mother and the tenant - the council just sourced the tenant originally).

The ‘date to leave’ on the section 21 notice was back at the end of November. The tenant says that they have been looking for alternate property but I have to assume that a) they don’t want/need to move out or b) cannot find anywhere due to the current pandemic restrictions. Hence we find ourselves looking at the NB5 court order process.

We are inexperienced here, and I just wanted to ask for some advice on next steps - hopefully I can keep it short! Here goes:

  1. Court costs - there is an option on the form to ask that the tenant pays these - but am I complicating things by ticking this?
  2. Is ‘proof of service’ of the Sec 1 form still required?
  3. Alongside the tenancy agreement there is a separate ‘Deposit Guarantee Agreement’ between my mum and the local borough council that indemnifies her in respect of rent, damage or loss. Is this a ‘deposit’ in the context of the NB5 court form?
  4. Is it true that tenancy agreements signed before 2015 do not attract the same obligations in terms of EPC, Gas certs etc? The property is completely up to date in terms of current safety checks, certs and repairs - it’s just that I won’t have everything going back to 2012 just because my mother does not have all the records. I don’t want an application to held up on a technicality.

Sorry for the lengthly post - but any help would be greatly appreciated as this is uncharted territory for us.

2
  1. Asking for the costs to be awarded to the tenant shouldn’t complicate things, although I doubt she will be in a position to pay. Others will know better than I whether it could lead to actual delays.
  2. Not sure what the sec 1 form is. If you mean s21 then yes, you would have to have evidence of service (eg postal receipt from post office/photographic evidence etc)
  3. The guarantor agreement is not a deposit.
  4. Yes, its true that some of the prescribed documents are not required for pre-2015 tenancies. Just make sure that it hasnt been renewed since Oct 2015, including periodic tenancies.
3

Thanks David,

  1. Yes, I meant sec 21, sorry for the typo.
  2. OK, so does this mean the landlord is in breach and the sec 21 would be deemed invalid? We were told by the council at the start of the tenancy that this acted as a ‘deposit’. Essentially an indemnity of 1 months rent.
  3. What constitutes a periodic tenancy in the renewal context? Nothing has been signed since the original agreement in 2012, the rent has remained the same, and when the council were asked in 2013 what options were they replied 1) Give notice 2) Sign new agreement 3) Let the agreement run on and become a periodic tenancy with 2 months notice either side. My mother chose option 3.
4

Unless the Council gave you money as a security bond, there is nothing to protect and you would not be in breach of the legislation.

Unless your original tenancy was for 3 years and this ended after Oct 2015, the periodic tenancy that followed it would not be caught by the Deregulation Act requirements.

5

Thanks again for your reply and for the helpful info David.

So, when completing the N5B form would I be correct in assuming we could answer ‘No’ to the “Was a deposit paid” question and it not be a breach of the notice and/or claim in any way?

Subsequent questions ask for dates (and copies of) both the EPC and gas certificate as provided to the tenant on commencement of the tenancy. These were provided to the council at the time as a condition of the tenancy - and we still have a copy of the gas certificate, but not the EPC.

The form also asks for copies of subsequent gas certificates and dates that they were given to the tenant. We can only find the 2019 and 2020 ones, and I don’t believe all of these were ‘presented’ to the tenant at the time.

Shelter’s website states that the section 21 notice can be invalid without a gas safety certificate and energy performance certificate but that “this might not apply if the tenancy started before 1 October 2015 and has not been renewed since.”

What does “might” mean here and how does this apply to us when trying to submit a claim based on the Section 21 notice?

We don’t want to submit a claim, with the associated costs, only for it to be thrown back at us by the court. Could the tenant raise these points as valid evidence for an invalid notice in order to continue residing there?

Lastly, there seems to be zero to no guidance to completing and submitting the N5B form. I’ve seen some sites state that you need to send 4 copies of everything in with the application(!).

Is that the case - or would the court make any copies that they may wish to distribute as part of the case?

Important to note that we have had a really good relationship with the tenant (by their own admission), but then we would say that wouldn’t we! We have been very responsive to any issues they have brought up in the past etc. It’s just that I get the feeling that, due to the tenant’s circumstances, they would do what they could within the regulations to stay put.

Grateful for any guidance you can give before this process is started.

6

A deposit is monies you took as security before the tenancy commenced
If it was taken you need to have secured with a government registered scheme

You need to ask the council if they gave you money ( in which case it should have been registered by the landlord) or is it like a bond scheme where they remunerate you for damages etc after

7

The situation with the gas safety certificate is complicated and the recent Trecarrel case has only partially resolved this. It appears now that as long as a valid gas safety certificate was in place prior to the start of the tenancy then serving it to the tenant some time later would not invalidate a s21 notice.

I would suggest you run your case through the Nearly Legal s21 flowchart to see if its valid. You can find it here:

8

Thanks Alumni, no deposit was taken by us, and the ‘deposit agreement’ drawn up by the council provided indemnity with mention of 1 months rent.

9

Thank you David, that flow chart is really helpful. We made it through unscathed. It appears to treat the pre-2015 agreement quite differently to post which is nice and clear.

I’m still unsure how the court likes to receive the N5B form - hopefully not multiple copies! I will try and dig this info out.