Notices and Section 21:
A recent case has brought to light the importance of serving certain prescribed information at the very start of an Assured Shorthold Tenancy (AS) – before the tenant enters – following the changes brought about by the Deregulation Act 2015.
This article applies primarily to English law. Although tenancy laws are similar in other jurisdictions, there may be significant differences. Always seek professional advice before making or not making important decisions.
The case Assured Property Services Limited v Ooo, tried at Edmonton County Court on 31 June 2017, involved the late serving of Gas Safety Certificate, and the subsequent serving of a Section 21 notice, which the tenant claimed was invalid.
Up to now the generally accepted advice has been, since the introduction of the Deregulation Act legislation, that these notices can be served late, providing this occurs before serving a section 21 notice. The Ooo case, and a more recent one through a London county court appeal (Caridon Property Ltd v Monty Shooltz, February 2018) would seem to confirm that this is NOT the case.
As the law stands at this time it would seem that landlords MUST serve a gas safety certificate, and most likely the EPC and the “How to Rent” guide at the very start of every new tenancy, before the tenant enters the property, and they must be current on any renewal, otherwise any subsequent s21 notice will be invalid.
What makes this even more of an issue for landlords and agents is that, as it stands, there is no way to mend the situation, as far as we know nothing can be done to make the notices valid in the future once the omission has occurred – landlords in this situation would be left with a section 8 solution if the tenant is in breach of the contract and needs to be evicted, not ideal.
Section 21 Notices pre-requisites
It is recommended that on the commencement of every tenancy the tenant receives and signs for (proof of service is very important):
- A current EPC
- A current Gas safety Certificate
- The current copy of the government’s “How to Rent” Guide*
As with the deposit protection information (deposit must be protected within 30 days of receipt) it is recommended that these three documents are now made integral with the tenancy agreement, and therefore they are signed for and delivery cannot be refuted.
*Note, There are several versions of the How to Rent Guide, and it’s important that the current version is used – see our archive of editions here: https://www.landlordzone.co.uk/documents
It is important to note that sending copies of these documents via email is acceptable, providing the tenant has agreed to accept them in this way, supported by a reference in the tenancy agreement, but a full document must be sent, not just a link to a government website. However, it is, as recommended above, preferable to provide hard copies along with the agreement, as it is difficult to get proof of delivery when emailed.
In the recent Caridon Property Ltd v Monty Shooltz (February 2018) case a possession order was refused on the ground that the landlord served an invalid section 21 notice because of the failure to serve a gas safety certificate on the tenants before they moved in.
The landlord had served a gas certificate (11 months late) before serving the s21 notice, but the judge deemed this insufficient to satisfy the rules. On appeal the appeal court judge upheld the original county court judge’s decision.
Note: for tenancies entered into prior to 1st October 2015 and not renewed, these rules do not apply, but they will do for all existing tenancies after 1st October 2018.
Although these current case decisions are not binding right across the country as they are only county court appeals in London, future higher court appeals may make them so. If it is found that the original legislation has implications that Parliament did not foresee or intend, then the Prescribed Information Regulations will need to be amended by MHCLG, and given this bind in which some landlord and agents will find themselves, it would seem to make sense to do so.
The judge in the Monty Shooltz appeal case based his decisions on section 21A Housing Act 1988 (as amended) which states that, (1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.
These prescribed requirements are, as noted above, and partly set-out in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.
These new regulations are then affected by the rules governing the service of gas certificates in the Gas Safety (Installation and Use) Regulations 1998, which by implication must now be strictly observed, that is:
“…a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.”
See also: Assured shorthold tenancies – valid s21 notices https://www.landlordzone.co.uk/information/assured-shorthold-tenancies-valid-s21-notices
Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 http://www.legislation.gov.uk/uksi/2015/1646/contents/made
Gas Safety (Installation and Use) Regulations 1998 http://www.legislation.gov.uk/uksi/1998/2451/contents/made
With acknowledgements to Tessa Shepperson of landlord Law and Giles Peaker, solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors and his Nearly Legal blog