In a recent case, the Court of Appeal declared that a section 21 notice seeking possession was valid, despite the landlord failing to provide an Energy Performance Certificate (EPC) prior to the notice.
Typically, a landlord cannot serve a valid section 21 notice where they have failed to provide the tenant with a copy of a current EPC and gas safety certificate.
However, the outcome of this particular case highlights that this requirement only applies to assured shorthold tenancies (AST) that were granted or renewed on or after 1 October 2015.
What is an EPC?
EPCs measure the energy efficiency of a property. They were first introduced in 2007 and are now a legal requirement for a building to be sold, let or constructed. Once an EPC has been obtained, they are typically valid for ten years.
EPCs are measured on a scale from A-G, with ‘A’ being the most efficient home. In April 2018, Minimum Energy Efficiency Standards made it a legal requirement for all privately owned properties to have an EPC rating of at least an ‘E’ before they are either let or sold. This particular legislation applies to both residential and commercial properties.
Failing to make the necessary changes to reach band ‘E’ can often lead to significant fines: up to £5,000 for domestic properties and up to £150,000 for non-domestic properties.
Why is an EPC normally required to serve a section 21 notice?
Under sections 21A and 21B of the Housing Act 1988, it states that a landlord will not be able to serve a section 21 notice unless they have complied with the following requirements:
- The landlord must provide the tenant with an energy performance certificate free of charge; and
- The landlord must provide the tenant with a gas safety certificate. However, the requirement is limited to providing a copy, and said copy does not have to be provided within 28 days as required by regulation 36 of the Gas Safety (Installation and Use) Regulations 1998.
This legislation was first introduced in 2015 and was met with plenty of criticism from landlord bodies who felt that the enforcement of the new rules was poorly thought out.
Why wasn’t an EPC required in this instance?
In this case (Minister vs Hathaway [2021]), the tenancy in question began on 19 March 2008 with a fixed term of one year. From 19 March 2009, it then became a statutory periodic tenancy.
On 6 December 2018, the landlord served a section 21 notice seeking possession and later issued proceedings for possession of the property. However, the claim for possession was initially dismissed on the grounds that an EPC had not been served.
In the first instance, the section 21 notice was held to be invalid, but on appeal by the landlord, the decision was overturned, and the notice was held valid. The tenant then appealed this decision.
The Court of Appeal considered the section 21 notice seeking possession and passed its judgement, concluding that it was indeed valid as Regulation 2 of the Regulations does not apply to tenancies that have been granted before 1 October 2015.
The result of the case means that landlords of properties that are let under assured shorthold tenancies that were granted or renewed prior to 1 October 2015 can serve a section 21 notice without having to provide an EPC or comply with the Gas Safety Regulations.
Do you need advice about EPCs or any other problem related to landlord and tenant law?
The eviction ban extension and the arbitration scheme will undoubtedly be controversial, and while it could be a lifeline to some, it will surely cause hardship for others.
If you need advice relating to your tenancy, whether you are a landlord or a tenant, our team of expert conveyancing solicitors are on hand to lend their expertise. We can review the details of the tenancy in question and provide strategic and practical advice to help you resolve any legal issues that have occurred, or any property disputes you find yourself involved in.
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