We write with some further information on the importance of serving the correct version of the How to Rent Guide to residential tenants, and serving it correctly. This is based on a judgment passed in a County Court appeal of a possession order, which concerned whether the possession order should have been made given the issues raised by the tenant regarding the How to Rent guide.

The facts

The landlord brought accelerated possession proceedings under a Section 21 notice.

The claim form confirmed by way of statement of truth that the current version of the How to Rent guide at the time the tenancy was granted had been provided to the tenants on 19 June 2019, being the start of the tenancy. As is required with this claim form, a copy of the How to Rent guide supposedly served was annexed to the claim form along with a certificate of service confirming the guide had been served on 19 June 2019 by the landlords agent by hand, and a copy of the last page of the AST which showed the tenants signatures to acknowledge receipt of a How to Rent guide.

The issues

The guide annexed to the claim form was dated May 2019. There were however 3 changes to the guide between May 2019 and July 2019, but (unhelpfully!) all three versions are dated May 2019.

The version of the How to Rent guide that was annexed to the claim form, despite the guide itself being dated May 2019, was actually the version from 29 July 2019. Consequently, this version of the guide could not have been given to the tenants on 19 June 2019 as stated in the claim form.

The landlord further sought to adduce evidence that the 29 July 2019 version of the How to Rent guide was emailed from the agent to the tenants on 28 August 2019, however this did not aid the landlords position as the How to Rent guide must be provided to the tenants in hard copy unless there is an express agreement to accept service by email, and nothing in the AST allowed for service of documents or the How to Rent guide by email.

The landlord therefore had no evidence that the version of the How to Rent guide current at the time the tenancy was entered into had been served to the tenants prior to service of the Section 21 notice.

The decision

The Circuit Judge expressed concerns with the inaccuracy of the particulars of claim in relation to the reliability of what was said by and on behalf of the claimant landlord, and what the landlord did say showed his lack of understanding in relation to the How to Rent guide. He further stated that the email that was sent by the agent in August 2019 attaching the 29 July 2019 version of the How to Rent guide shows that the agents were aware that the tenants had not received the current at the time version of the How to Rent guide upon signing the tenancy agreement, as otherwise why would they have sent this email.

The Claimant had not established that the current How to Rent guide at the time the tenancy was entered into had ever been served prior to service of the Section 21 notice. The possession order was therefore set aside and the claim was dismissed, meaning the landlord will need to serve a fresh Section 21 notice to expire approximately 2 months after the date it is deemed served and thereafter issue new proceedings, but not of course before serving the correct version of the How to Rent guide. No doubt this was a costly and timely mistake.

Comments

The How to Rent guide that was current at the time the tenancy was entered into must be served in accordance with how tenancy documents may be served under the tenancy agreement, prior to service of a valid Section 21 notice. For the purposes of serving a Section 21 notice, this can be done or corrected retrospectively – there is no requirement for the correct version of the guide to be given at the beginning of the tenancy for the Section 21 notice to be valid, although of course it should be given upon commencement and any subsequent renewals as this is best practice and a requirement under the Deregulation Act 2015.

When instructed to recover possession of a Property, our residential possession team undertake a thorough review of the tenancy documents and the notice, including whether version of the How to Rent guide current at the start of the tenancy has been served prior to service of the Section 21 notice, as well as the current version at the date of the notice. If incorrect versions of the guide have been served, we can remedy this by serving the correct versions prior to service of the Section 21 notice.

Should you require assistance with recovering possession of your property, please contact a member of our Possession Team.

Please note that the above does not constitute legal advice.