No need to serve EPCs with S21 Notices for tenancies pre 2015!

EPC’s are not required to be served with a Section 21 notice for assured shorthold tenancies if the tenancy predates October 2015.

Following the recent Court of Appeal Decision of Minister v Hathaway (2021)

The facts
An assured shorthold tenancy (AST) was granted by a landlord in March 2018 for a fixed term of 12 months. In March 2009, the tenancy became a statutory periodic tenancy.

On 6 December 2018 the landlord served a Section 21 notice on the tenant without having provided the tenant with an Energy Performance Certificate (EPC) before that date.

Proceedings for possession were commenced in February 2019 and the tenant defended the proceedings on the basis that a landlord had not provided an EPC prior to serving the Section 21 notice and therefore the Section 21 notice was invalid.

The relevant law
The Deregulation Act 2015 (2015 Act) introduced legal requirements for landlords when granting an AST commencing on or after 1 October 2015. Alongside the Act came the Assured Shorthold Tenancy Notices and Prescribed Requirements Regulations 2015 of which Regulation 2 specifies that landlords need to provide a valid EPC to a tenant, as well as a Gas Safety Certificate, for all ASTs that came into force on 1 October 2015. The tenant in this matter tried to argue that the requirement for a valid EPC and Gas Safety Certificate also applied to all tenancies that may have commenced before 1 October 2015.

The court however decided that the provisions under The Deregulation Act do not apply to tenancies that commenced prior to 1 October 2015.

Therefore, the requirements to provide a tenant with a valid EPC and Gas Safety Certificate therefore only applied to AST’s granted on or after 1 October 2015.

Whilst the above may prove a small victory for landlords, it is important to note that the Government has promised to abolish the Section 21 notice and therefore this case may not have as much impact as we would have hoped.

For more information

If you have any queries relating to the above, then please contact Baljit Basra or any of the housing litigation team.

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