Real Estate Legal Update

Real Estate Legal Update: a s.21 notice ending a tenancy that was before October 2015 was valid despite the lack of an Energy Performance Certificate (EPC).

In Minister v Hathaway and another [2021] EWCA Civ 936 (23 June 2021) the Court of Appeal was required to consider the validity of a landlord’s notice to seek possession under s.21 Housing Act 1988. Here the tenancy had commenced prior to October 2015 and the landlord had not provided an EPC to the tenant before serving the notice.

However, under Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646) (the “2015 Regulations”), a landlord cannot serve a notice seeking possession under s.21 Housing Act 1988 unless they provided the tenant with an EPC and a gas safety certificate.

The tenant was subject to an assured shorthold tenancy in March 2008 for 1 year. From March 2009 the tenant occupied the flat under a statutory period tenancy which continued month to month. The landlord had severed a s.21 notice in December 2018 but had not provided an EPC.

The Court of Appeal held that the landlord’s s.21 notice was valid and explained:

  • regulation 2 of the 2015 Regulations did not apply to tenancies granted prior to 1 Oct 2015; and
  • from 1 Oct 2018 the Secretary of State had the power to extend the scope of regulation 2 to any assured tenancy existing on that date, however that power had not been exercised and there was no obligation to do so.

This decision clarifies the current scope of regulation 2 of the 2015 regulations. Landlords who granted tenancies pre- 1 October 2015 are likely to welcome this decision. The government’s current proposals to abolish section 21 may be a factor in whether the Secretary of State intends to extend the application of regulation 2 in the future.