On 23 June 2021 the Court of Appeal has concluded that Regulation 2 of The Assured Shorthold Tenancy Notices and Prescribed Information (England) Regulations 2015 does not apply to tenancies granted before 1 October 2015.

This means that landlords with properties let under such Assured Shorthold Tenancies (“AST’s”) do not have to serve an Energy Performance Certificate (“EPC”) or comply with requirements in the Gas Safety (Installation and Use) Regulations 1998 in order to be able to rely upon a section 21 notice.

The Deregulation Act 2015

The Deregulation Act 2015 (“DA 2015”) inserted the following provision into the Housing Act 1988:

21A (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.

A “prescribed requirement” would include the provision of an EPC.

In addition, Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646) (the “Regulations”) states that before serving a section 21 notice seeking possession, a landlord must have provided the tenant with an EPC and Gas Safety Certificate.

Minister v Hathaway & Hathaway [2021] EWCA CIV 936 (see full order here)

The landlord in the above case, Mr & Mrs Hathaway, had granted the tenancy to Mr Minster in 2008. No renewal of the tenancy was ever granted subsequent to the original 2008 agreement and therefore the 2008 tenancy became a statutory periodic tenancy in 2009 and continued to “roll over” year on year thereafter.

In December 2018, the landlord served a section 21 notice on the tenant seeking possession, and later issued proceedings for possession of the property. The tenant defended those proceedings on the basis that the landlord had failed to provide an EPC prior to serving the section 21 notice seeking possession.

At first instance the section 21 notice was held to be invalid but on appeal by the landlord, the decision was overturned and the section 21 notice was held to be valid. The tenant appealed the decision.

The Court of Appeal decision

The Court of Appeal concluded that the section 21 notice was in fact valid as Regulation 2 of the Regulations does not apply to tenancies that have been granted before 1 October 2015.

Final thoughts

As a result of this decision landlords of properties let under AST’s granted or renewed prior to 1 October 2015 are not required to serve an EPC or How to Rent Booklet, or comply with the Gas Safety Regulations (Gas Safety (Installation and Use) Regulations 1998) etc when serving a section 21 notice seeking possession,

Full compliance with the DA2015 is still required for all AST’s granted or renewed on or after 1 October 2015. Our Legal Update from September 2018 (see here) detailed the information that must be provided to tenants to ensure compliance with the prescribed requirements and thus the ability to serve a valid section 21 notice.

This decision of the Court of Appeal with be good news for some landlords and provides clarity on an often debated topic. However, as this is a recent decision it might be worth while still including for the time being and where available early EPC’s and gas Safety Certificates in order to save any complications and costs later down the line were the court to inadvertently and incorrectly make an order conflicting with the Court of Appeal decision here. It is better to include the material, if available than face the delay and cost of an application back to the court to correct a bad decision.

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