No requirement to provide EPC when serving section 21 notice for pre-2015 tenancies
The Court of Appeal concludes in recent case that the section 21 notice seeking possession was valid despite lack of energy performance certificate.
The Court of Appeal has considered the validity of a section 21 notice seeking possession, whereby the landlord failed to provide an Energy Performance Certificate (“EPC”) prior to serving the notice.
The Deregulation Act 2015 inserted the following provision into the Housing Act 1988:
21A (1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.
A prescribed requirement being the provision of an EPC.
In addition, Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646) (the “Regulations”) states that before serving a section 21 notice seeking possession, a landlord must have provided the tenant with an EPC and Gas Safety Certificate.
Minister v Hathaway  EWCA Civ 936
The landlord in the above case had granted the tenancy which commenced in 2008, later becoming a statutory periodic tenancy in 2009.
In December 2018, the landlord served a section 21 notice on the tenant seeking possession, and later issued proceedings for possession of the property. The tenant defended those proceedings on the basis that the landlord had failed to provide an EPC prior to serving the section 21 notice seeking possession.
At first instance the section 21 notice was held to be invalid but on appeal by the landlord, the decision was overturned and the section 21 notice was held to be valid.
The tenant appealed the decision.
The Court of Appeal
The Court of Appeal considered the section 21 notice seeking possession and handed down its judgment on 23 June 2021. The Court of Appeal concluded that the section 21 notice was in fact valid as Regulation 2 of the Regulations does not apply to tenancies that have been granted before 1 October 2015.
Therefore, landlords of properties let under assured shorthold tenancies that were granted or renewed prior to 1 October 2015, when serving a section 21 notice seeking possession, are not required to serve an EPC or comply with the Gas Safety Regulations (Gas Safety (Installation and Use) Regulations 1998).
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