When Exactly Will Section 21 Be Abolished?

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When Exactly Will Section 21 Be Abolished?

The Renters (Reform) Bill has now passed through its report stage and third reading in the House of Commons and will, presumably fairly shortly, begin its passage in the House of Lords. As at the committee stage it was extensively amended again, although a lot of the amendments were more technical things fixing various problems that had been introduced by previous amendments.

One of the key areas of change, and one which has provoked comment and controversy is the process of implementing the Bill. There has been much said about this that is a little less than accurate, including suggestions that the government has somehow refused to give a date for the ending of s21. That is not the case although it is true to say that the government scrubbed the original commencement provisions out of the Bill and replaced them with a more complex phased process.

The Bill must be passed and get its Royal Assent first. On that date the Bill comes into effect for the purpose of making regulations only. In other words none of its provisions will be effective. This is not terribly unusual and relatively few modern Bills come into effect on the day they get their Royal Assent, they are usually commenced later once all the structures needed to support them are in place. Indeed, this was exactly the process initially envisaged by the RRB when it was first published.

The government stated in the original Fairer Renting White Paper that it would give six months’ notice before getting rid of s21. They appear to be seeking to keep that promise and so they will presumably pass regulations giving a commencement date for the part of the RRB which amends the Housing Act 1988 to removes s21 and Assured Shorthold tenancies (ASTs) on some date six months into the future. At that first stage s21 and ASTs will cease to exist for all new tenancies. In fact, it is a little wider than this as the commencement provisions make clear that any tenancy which is created or renewed after that commencement date as well as any tenancy which moves from fixed term to periodic will cease to be an AST and will fall within the RRB. As most ASTs are for six or twelve months that means that the vast majority of existing tenancies would switch over during the following year, even if the government did nothing more.

The next phase is to move over any existing tenancy. Again the Fairer Renting White Paper gave a time commitment on this which was twelve months warning. However, the government has added a new hurdle which must be overcome before existing tenancies can be switched over. This new hurdle requires the Lord Chancellor to undertake “an assessment of the operation of the process by which … the county court is able to make orders for the possession of dwellings in England” as well as the process of enforcement. In other words the Lord Chancellor must assess the operation of residential possession proceedings and court bailiff enforcement of them. That assessment must be published. The complaint from tenant groups is that nothing in the provision requires the Lord Chancellor to do this on any specific timetable so it could be stalled indefinitely. But that is not really a justified complaint. As I have pointed out above for the entire period the Lord Chancellor is not assessing the process tenancies will be naturally converting as tenants turn over or fixed terms come to an end and so the number of tenancies will be dropping all the time. In addition, the assessment has to do no more than assess. It is not an assessment of effectiveness or efficiency and it does not have to reach any specific conclusion. The assessment could find that proceedings were hopelessly ineffective and the county court utterly inefficient (some might argue that it an accurate assessment right now!) and the government could theoretically carry on. In addition, the longer the delay the smaller the remaining number of tenancies and so the assessment is more likely to conclude (if it comes to any conclusion at all) that there will not be much difference made by going ahead and concerting the remaining tenancies. So the assessment is a bit of a double-edged sword and provides not massive benefit to landlords.

Once the assessment has been published then the government can pass regulations to bring remaining tenancies into the new regime, converting them from ASTs to assured tenancies.

So, it is not exactly true to say that the government has engineered an open-ended transition which will mean tenancies never convert. The dates are not ones that can be given now but we can see broadly when conversion will occur and the overwhelming majority of tenancies will convert over a time period. This is little different from the changes made by the Deregulation Act which also saw tenancies converting over a time period. Indeed there are still a small number of tenancies for which the provisions of the Deregulation Act do not apply. However, there seems little likelihood of a similar extended conversion process under the RRB.

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