The Court of Appeal has upheld the validity of a section 21 notice served by a landlord on a tenant requiring possession of the tenant’s flat, even though no energy performance certificate (“EPC”) had been served on the tenant prior to the service of the notice. This was because the tenant’s statutory periodic shorthold tenancy was deemed granted before the relevant date from when an EPC was required to be served prior to service of a section 21 notice. The decision relates to England only.
The Hathaways, the landlords, granted Mr Minister, the tenant, an assured shorthold tenancy (“AST”) of a flat in Bexhill on Sea for a fixed term of one year starting on 19 March 2008. From 19 March 2009 the tenant occupied the flat under a statutory assured shorthold periodic tenancy, which was deemed to have been granted under section 5(2) of the Housing Act 1988 (“Act”).
On 6 December 2018 the landlords served on the tenant a notice under section 21 of the Act (“section 21 notice”) requiring possession of the flat. No EPC had been served prior to 6 December 2018. The landlords brought proceedings for possession of the flat and they succeeded in their claim in the County Court. The tenant appealed to the Court of Appeal.
The Act provides that a section 21 notice cannot be given at a time when the landlord is in breach of certain statutory requirements. The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“Regulations”) provide that those requirements are providing a valid EPC to the tenant free of charge and also providing certain gas safety records. The Regulations, however, only apply to an AST granted on or after 1 October 2015, but not to an AST that came into being under section 5(2) of the Act on or after 1 October 2015 on the coming to an end of an AST granted before that date.
The landlords argued that the requirement to provide the EPC before serving the section 21 notice did not apply, because the tenant's tenancy was not an AST granted on or after 1 October 2015. The tenant, on the contrary, relied on section 41(3) of the Deregulation Act 2015 to argue that since his tenancy was an AST which was in existence on 1 October 2018 (regardless of when it was granted), the EPC requirement did apply and, therefore, the section 21 notice was invalid.
The Court of Appeal reviewed the interplay of the relevant legislation and upheld the lower court’s decision that the EPC requirement did not apply, because the tenant's statutory periodic tenancy was deemed to have been granted in 2009, well before the 1 October 2015 date under the Regulations.
This decision is significant, because it concerned an issue that has divided judges and commentators. If an AST was granted or a statutory assured shorthold periodic tenancy was deemed granted before 1 October 2015, no EPC needs to be served on the tenant before a section 21 notice is served. There is also no requirement to serve the EPC before serving the section 21 notice for a statutory assured shorthold periodic tenancy that came into being on or after 1 October 2015 following the end of an AST granted before 1 October 2015.
The decision also applies to the requirement for a landlord to provide the tenant with certain gas safety records.
George Minister v Darran and Susan Hathaway [23 June 2021] Court of Appeal.