Prescribed Legal Requirements Before Serving A Section 21 Notice
In this part of our series we look at “prescribed legal requirements” which must have been completed before a section 21 notice can be served in England.
The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 commence on 1 October 2015 and only apply to a section 21 being served where the dwelling is located in England. These regulations define “prescribed requirements” for the purpose of a new section 21A Housing Act 1988 inserted by section 38 Deregulation Act 2015.
Subject to the next paragraph, the regulations only apply where an assured shorthold tenancy was granted on or after 1 October 2015 including a written renewal on or after that date. The regulations do not apply where an assured shorthold tenancy becomes a statutory periodic tenancy on or after 1 October 2015 where the original fixed term tenancy was granted before the 1 October 2015.
From 1 October 2018, the requirements discussed here will apply to ALL assured shorthold tenancies in England including any that were granted before 1 October 2015 (or went statutory periodic). See below for an exception to the three year rule in respect of an EPC.
Neither a section 21(1) nor 21(4) notice may be given in relation to a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement 1.
The prescribed requirements are:
- the requirement to provide an energy performance certificate (EPC) to a tenant free of charge; and
- the requirement to provide a tenant with a gas safety record.
Energy Performance Certificate (EPC)
Any EPC should be obtained within 7 days of marketing and given to a ‘prospective’ tenant at the time of viewing under the EPC legislation. However, the prescribed requirements relating to the service of a section 21 specifically exclude this time limit and refer only to regulation 6(5) The Energy Performance of Buildings (England and Wales) Regulations 2012 –
(5) The relevant person must ensure that a valid energy performance certificate has been given free of charge to the person who ultimately becomes the … tenant.
Therefore, even if an EPC wasn’t provided at the viewing, it would seem, as long as it is provided at some point before the section 21 it ought to be fine (but see later in this article).
Gas Safety Record
Under the gas safety legislation, a gas safety record must be provided before a new tenant occupies and then within 28 days of any new record being produced (which must be within 12 months of install or the last record).
Similar to the EPC requirement described above, there is an exclusion of the time limit for providing a gas safety record:
(2) For the purposes of section 21A of the Act, the requirement [to give a gas safety record] is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply.
Where a gas safety has been provided at commencement of the tenancy but further gas records during the tenancy have not been given within the 28 day period, the giving of the further gas safety record(s) outside the 28 day window will render a section 21 valid. However, the regulations do not mention about a failure to provide a gas safety record at commencement as required under the gas safety legislation:
every landlord shall ensure that … 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 …
As a result, it may be that if there is a failure to provide the gas safety record to any new tenant … before that tenant occupies …, This could be an absolute bar on serving a section 21. A landlord in this situation would need to rely on one of the grounds for serving a section 8 notice such as rent arrears.
The excellent Nearlylegal blog holds the view that it is arguable that the prescribed legal requirements apply to the giving of the gas safety before occupation as that part of the regs is not excluded. Further, the same article argues that a failure to provide the EPC pre tenancy could also be fatal.
Update 15 May 2017: It has been reported that there have been two cases where a gas safety record was not given before occupation and as a result the landlords section 21 notice was held ineffective.