We regularly receive enquiries in relation to the content and form of section 21 notices and the legal requirements to ensure they are valid, in particular the changes introduced by the Deregulation Act 2015. We are focused in this article on assured shorthold tenancies granted on or after 1 October 2015.
The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulation 2015 (“the Regulations”) provide details of the prescribed requirements for the form and content of section 21 notices.
There has recently been legal commentary on the requirements contained within the Regulations regarding provision of certain documents to tenants and specifically when these documents must be provided to ensure any section 21 notice served on that tenant is valid. Aside from the usual deposit requirements (which are beyond the scope of this article), there are a number of requirements, failure to adhere to which will result in the inability to serve a valid section 21 notice – these include:
(a) Provision of an energy performance certificate (“EPC”) to the tenant free of charge as per regulation 2(1)(a) of the Energy Performance of Buildings (England and Wales) Regulations 2012;
(b) Provision of a gas safety certificate (“GSC”) as per Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, regulation 2(1)(b); Gas Safety (Installation and Use) Regulations 1998, regulation 2(1)(b) (the 28-day compliance requirement in the gas safety regulations is disapplied);
(c) Provision of the booklet “How to rent: the checklist for renting in England” as per Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, regulation 3(1)(2) – note that Registered Providers are not required to provide this document.
In short, a mandatory claim for possession can only be sought by way of the section 21 procedure once the above prescribed requirements have been complied with. It is of course important to ensure a written record is kept of doing so along with copies of the same as evidence of the fact the requirements have been complied with.
In respect of the EPC and GSC, these should be physically served on the tenant prior to the commencement of the tenancy and, indeed, a written file/record should be retained with copies of the cover letter and the EPC/GSC doing so.
There has been a recent County Court appeal (before Circuit Judge HHJ Luba QC) in relation to the GSC requirement which, in short, decided that if the current GSC for a premises was not given to a new tenant before they occupied the premises (as required by regulation 36(6)(b) of the Gas Safety (Installation and Use) Regulations 1998) then this would be an irremediable breach of the Regulations. In practical terms, this means a section 21 notice could never be validly served on the premises (at least during the period of that tenancy).
The issue is one which has attracted much debate, not least in light of the Explanatory Memorandum to the Regulations which states:
“4.4…Therefore as long as the landlord has carried out a safety check and provided a certificate, they are not prohibited from using the no fault eviction procedure (although they may be subject to sanction under the 1998 Regulations for failure to comply with them). No section 21 notice may be given where a landlord has failed to comply with either of these requirements.”
It is expected that this issue will almost certainly be re-visited by the courts but, until so, it is certainly best practice to ensure GSCs are provided to tenants prior to the commencement of the tenancy (and a record is retained of doing so). Failure to do so will mean landlords will be exposed to an argument that any section 21 notice served is invalid where they did not provide the gas safety certificate before the tenant moved in to an assured shorthold tenancy (which began post 1 October 2015) at least for the duration of that tenancy.
For further guidance or advice on Gas Safety do contact Aston Kazlauskas on 020 7880 4292 or aston.kazlauskas@devonshires.co.uk.
