Legislation brought in on 1 October 2015 imposes additional requirements on landlords in relation to gas safety certificates and Energy Performance Certificates (EPCs). Failing to meet those requirements can render any section 21 ‘no-fault’ eviction notice served invalid, potentially exposing landlords to adverse costs orders when relied on in possession proceedings.
Initially, the legislation applied only to Assured Shorthold Tenancies (ASTs) granted on or after 1 October 2015. However, since 1 October 2018, these additional requirements have applied to all ASTs, irrespective of their start dates.
Unless the landlord has complied with the following requirements, so far as they apply to the tenancy, any notice seeking possession served under section 21 of the Housing Act 1988, a “no-fault” eviction notice, is likely to be invalid:
- Provide the tenant with a gas safety certificate
- Provide the tenant with an Energy Performance Certificate (EPC) free of charge
Gas Safety Certificates
If there is gas in the property, landlords must provide their tenants with a valid gas safety certificate. If they do not, any section 21 notice seeking possession will be invalid. However, there is no longer any requirement to serve the gas safety certificate within 28 days or within any prescribed timeframe, therefore may be possible to rectify a failure to provide a tenant with a gas safety certificate prior to serving the section 21 notice. This has recently been confirmed in the judgment of Trecarrell House.
It is essential that the gas safety certificate is served on the tenant before the section 21 notice is served. A section 21 notice must be valid at the time it is served; once served, it cannot be retrospectively validated.
In the case of Trecarrell House, the landlord had obtained a valid gas safety certificate which covered the period of the tenancy from its outset. Had the landlord lost or failed to obtain a gas safety certificate, it is likely that he would not have been able to rectify the situation and serve a valid section 21 notice.
Energy Performance Certificates
The position in relation to EPCs is less clear-cut as it has not yet been tested in the courts. However, it is generally expected that the courts will follow the same approach as in Trecarrell House and allow for the position to be rectified by serving a valid EPC on a tenant prior to service of a section 21 notice. Again, it is expected that a valid EPC will have been in force for the duration of the tenancy, so that it is merely the failure to meet the requirement to serve a copy on the tenant which is to be rectified. If a valid certificate has not been obtained or cannot be located, it may be that a valid section 21 notice cannot be served.
If a valid section 21 notice cannot be served
In situations where a valid section 21 notice cannot be served and therefore relied upon in possession proceedings, landlords might not be able to evict their tenants unless the grounds of section 8 of the Housing Act 1988 apply. These are not discussed in detail here but generally rely on tenant’s breach of contract.
However, if landlords are unaware of these issues and commence possession proceedings based on invalid notices, the court can, and is likely to, order the landlord to pay the legal expenses of the tenant, as well as his own.
It is therefore essential to ensure, prior to the start of a new tenancy, that all legal requirements are complied with. Contact us for detailed, personalised advice.
This piece discusses some of the regulations in force at the time of writing in England. This is not an exhaustive list of the requirements on landlords which must be fulfilled prior to service of a section 21 notice. Different regulations apply in Wales and other parts of the UK. Please contact us for detailed, personalised advice.