Test case: Servicing a section 21 notice and prescribed information

The Section 21 possession procedure (currently under threat of being removed) is a no fault eviction process where the landlord can serve notice on a tenant to regain possession once the initial minimum 6 months’ or contracted fixed term has ended.

A section 21 notice is for 2 months and will only be valid if the landlord or agent has met certain specific requirements, one of these being the service on the tenant of the correct prescribed information before or at the commencement of the tenancy.

Prescribed information required

In England, in addition to the deposit being protected in an approved scheme within 30 days of receipt, and the property being properly licenced for lettings, the landlord or agent must (1) provide prescribed information relating to the deposit, (2) provide an EPC, (3) provide gas and electrical safety certificates as appropriate, (4) provide the tenant with the current How to Rent guide

In addition the landlord must not be in breach of the Retaliatory Eviction regulations 2015 following a complaint about repairs, or the Tenant Fees regulations 2019 which prevent landlords from taking certain fees.

Meeting all of these requirements demands a good degree of due diligence on the part of the landlord or agent, but this is a crucial step in the letting process if a Section 21 notice is to result in a successful eviction.

The gas certificate controversy

There was some controversy some little while ago; a court found for a tenant when the landlord had failed to serve a gas safety certificate (GSC) before the tenancy commenced and ruled that the S21 notice was therefore defective.

Thankfully this anomaly – which would have resulted in thousands of landlords unable to use s21 – was cleared up by The Court of Appeal in Trecarrell House Ltd v Rouncefield [2020] when is was confirmed that a landlord failing to provide a tenant with a copy of a GSC before the start of a tenancy does not create an absolute bar on landlords subsequently relying upon the S.21 eviction procedure.

The default can be remedied by providing the certificate before serving a S.21 notice, providing the certificate was in force at the commencement of the tenancy. It also follows that failure to provide a copy of any further GSC relating to subsequent gas checks is not fatal providing they are given before a S.21 notice is served.

The test case

In the test case under consideration here in George Minister v Darran Hathaway and Susan Hathaway June 2021, the issue was whether a notice served by the landlord on the tenant under Section 21 of the Housing Act 1988 was invalid because no energy performance certificate (“EPC”) had been served prior to the service of the section 21 notice.

This tenancy had commenced in 2008, before EPCs for lettings came into force from 1 October 2015.

The question was whether service of an EPC was required at the relevant time under the 1988 Housing Act, the Deregulation Act 2015 (“the 2015 Act”) and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.

The judgement

District Judge K. Harper had held that service of an EPC was required and therefore the section 21 notice was invalid, whereas His Honour Judge Simpkiss on appeal held that service of an EPC was not required and therefore the section 21 notice was valid.

The tenant however was granted permission for a second appeal because the issue was deemed one which had divided judges and commentators alike.

This second appeal determined that a landlord of an assured shorthold tenancy (AST) commencing before 1 October 2015 could in fact enforce a Section 21 notice even though the tenant had not be served with an EPC before the S21 notice was served.

An important precedent

The case sets an important precedent – which applies only to England – for all prescribed information relating to Section 21 and AST tenancies which began before 1 October 2015.

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