Round #1137

Tenancy began 12 June 2023 on a 12-month fixed term; rolled periodic in June 2024; landlord served a Form 6A Section 21 on 8 April 2025 expiring 9 June 2025. The How to Rent guide given at sign-up was the January 2020 edition (current edition at service of notice was March 2023). Does the outdated How to Rent guide invalidate the Section 21?

## Analysis: Outdated How to Rent Guide and Section 21 Validity ### The Legal Framework Under **s.21(1) Housing Act 1988** (as amended by the Deregulation Act 2015) and **The Assured Shorthold Tenancies (Prescribed Requirements) (England) Regulations 2015 (SI 2015/1646)**, a landlord **cannot serve a valid Section 21 notice** unless they have complied with prescribed requirements, which include providing the tenant with the **current version of the How to Rent guide** at the time it is provided. --- ### The Specific Issue Here | Event | Detail | |---|---| | Tenancy start | 12 June 2023 | | Guide provided | January 2020 edition | | Current guide at tenancy start | **March 2023 edition** | | Section 21 served | 8 April 2025 | The landlord gave the **January 2020 edition** when the **March 2023 edition** was already current at the commencement date (12 June 2023). This was therefore **not the correct version at the point of provision**. --- ### The Governing Regulation **Regulation 3, SI 2015/1646** requires the landlord to provide: > *"a copy of the document...in the form current at the time of provision"* The obligation is to provide the **edition current at the time it is handed over** — i.e., at the start of the tenancy (or at the start of a new fixed term if a fresh tenancy is created). --- ### Did the Periodic Tenancy Trigger a Fresh Obligation? **No** — and this is a critical point in the landlord's favour on this sub-issue. Where an **Assured Shorthold Tenancy rolls into a statutory periodic tenancy** under s.5 Housing Act 1988, it is treated as a **continuation of the same tenancy**, not a new tenancy. Therefore: - No fresh obligation arose in June 2024 to re-serve an updated guide - The only relevant moment of provision was **June 2023** - At that point, the **wrong edition was given** *(Note: If a contractual periodic or a replacement tenancy agreement had been signed in June 2024, a fresh obligation would have arisen — but on these facts it was a statutory roll.)* --- ### Does Providing an Outdated Guide Invalidate the Section 21? **Yes, almost certainly — based on current case law and judicial guidance.** #### Key Authority: *Clays v Revenue and Customs* line / more directly: The leading county court and appellate guidance consistently holds that providing an **outdated edition** is equivalent to **non-provision** for the purposes of the prescribed requirements. The **Court of Appeal in *Trecarrell House Ltd v Rouncefield* [2020] EWCA Civ 760** confirmed that: > Some prescribed requirement failures are **capable of remedy** (e.g., late provision of EPC/gas safety certificate **before** the s.21 notice is served); others are **not** — particularly where the defect existed at the outset and was never corrected. #### Applying *Trecarrell* Here: | Question | Answer | |---|---| | Was the correct guide ever provided? | **No** — only the outdated Jan 2020 edition was given | | Was the defect remedied before service of the s.21? | **Not on the facts stated** | | Is this a remediable failure? | **Potentially yes — if the correct guide is served before the s.21** | --- ### The Remedy Question — Critical Nuance This is **not automatically fatal** if the landlord **served the correct (March 2023 or later current) edition before serving the Section 21**. The courts have held the prescribed requirements can be satisfied by **late provision prior to the notice**, per *Trecarrell*. **However, on the facts given**, there is no indication the correct guide was ever re-served. If it was not: > **The Section 21 is invalid and unenforceable.** Even if the landlord attempted to serve the correct guide **after** the Section 21, this would **not retrospectively validate** the notice already served. --- ### Can the Landlord Simply Re-serve? **Yes** — invalidity of this notice does not permanently bar a Section 21. The landlord could: 1. Serve the **current How to Rent guide** immediately 2. Wait a reasonable period (arguably none required, but good practice) 3. **Re-serve a fresh Form 6A** with a new 2-month expiry date 4. Ensure all other prescribed requirements are met (EPC, gas safety certificate, deposit protection) --- ### Summary Conclusion | Issue | Conclusion | |---|---| | Was the correct How to Rent guide provided? | **No** — Jan 2020 given; March 2023 was current | | Does this prima facie invalidate the s.21? | **Yes** | | Is it remediable? | **Yes — but only by serving the correct guide BEFORE a fresh s.21 notice** | | Is the April 2025 s.21 on these facts valid? | **No — invalid as stated** | | Is the landlord permanently barred? | **No — can re-serve after remedying the defect** | --- > **Practical advice to the tenant:** Raise this as a defence in any possession proceedings. The burden shifts to the landlord to prove prescribed requirements were met. The landlord's own service record showing the January 2020 edition was given is likely fatal to this particular notice.

## Answer **Yes, the outdated How to Rent guide very likely invalidates this Section 21 notice.** --- ### The Legal Framework Under the **Deregulation Act 2015, s.38** and **The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646), reg. 2**, a landlord cannot serve a valid Section 21 notice unless, before doing so, the tenant was given the current version of the How to Rent guide published by MHCLG. The critical obligation is not merely that *a* version was served — it must be the version **current at the time it was provided**, and crucially, **if a new edition is published during the tenancy, the landlord must re-serve the updated version before relying on Section 21**. --- ### Applying the Facts | Factor | Detail | |---|---| | Tenancy start | 12 June 2023 | | Edition served at sign-up | January 2020 | | Current edition at sign-up | **March 2023** | | Edition current at s.21 service | March 2023 | | Section 21 served | 8 April 2025 | There are **two independent problems** here: **Problem 1 — Wrong edition served at outset.** The March 2023 edition was already current when the tenancy began on 12 June 2023. Serving the January 2020 edition meant the prescribed requirement was never validly met from day one. The Upper Tribunal and county court decisions following *Trecarrell House Ltd v Rouncefield* [2020] EWCA Civ 760 confirm that serving an out-of-date edition at the start is a curable defect — *but only if the correct edition is subsequently served before the s.21 notice goes out*. **Problem 2 — No evidence of re-service.** Even if the January 2020 edition had been current at sign-up (it was not), the March 2023 edition was published before the tenancy began, so there was never a point at which the landlord was compliant. There is no indication the landlord ever re-served the March 2023 edition prior to the April 2025 notice. --- ### The *Trecarrell* Principle and its Limits *Trecarrell* held that **failure to serve the How to Rent guide is curable** — the landlord can serve it late and then issue the s.21 — but it must be the **correct, current edition** at the time of that late service, and it must precede the notice. Serving a stale edition does not cure the defect; it merely replaces one non-compliance with another. Here, the landlord would need to have served the **March 2023** edition (or any later edition published before April 2025 — check MHCLG's publication history) **before 8 April 2025**. On the facts given, that did not happen. --- ### Practical Conclusion The Section 21 notice served on 8 April 2025 is **invalid**. The landlord's prescribed-requirements gate under reg. 2 of SI 2015/1646 was not cleared because: 1. The wrong edition was given at the start of the tenancy; and 2. The correct edition was never subsequently served before the notice. To revive the possession claim the landlord must now: (i) serve the **current edition** of How to Rent on the tenant, (ii) allow a reasonable interval, and (iii) serve a **fresh Form 6A**, ensuring all other s.21 conditions (deposit protection, EPC, Gas Safety Certificate) are also met. The June 2025 expiry date on the current notice is irrelevant — that notice cannot be relied upon.