From 1 October 2015, big changes were made to section 21 Housing Act 1988 for tenancies in England. Extra requirements were introduced whereby a section 21 notice (two months no fault notice) could not be served unless an Energy Performance Certificate (EPC), gas safety check certificate and the government’s How to Rent Guide had been served on the tenant.
These changes were brought in by the Deregulation Act 2015 and The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.
From 01 October 2018, these rules apply to all tenancies, including tenancies granted before October 2015. The only exception is the requirement to provide the government’s How to Rent Guide (because it didn’t exist before October 2015).
Compliance with legal requirements before serving a section 21:
A landlord may not serve a section 21 notice on a tenant, if the landlord serving the notice is, at the time it is served, in breach of the prescribed requirements (section 21A (1) Housing Act 1988)
A copy of the EPC may be given by email, if the tenant consents. There is no time limit specified in the regulations. Provided the EPC has been given to the tenant any time before the section 21 notice is served, then there will be no breach.
The Gas Safety Certificate:
The regulations provide that the landlord is obligated to give existing tenants a copy of the gas safety certificate within 28 days of the check and to give any new tenant of the premises a copy of the existing gas safety certificate before they occupy the premises. It is not sufficient to leave a copy of the certificate at the property. In order to comply with the regulations, the tenant must be served with a copy of the certificate. In practice this means to hand a copy to the tenant or to send them a copy with a covering letter.
The regulations state that the landlord is only prohibited from serving a section 21 notice “at a time” when he is in breach of the prescribed requirement. It appears that parliament has envisaged that a landlord who rectifies a breach will subsequently be able to serve a section 21 notice.
The How to Rent Guide:
The regulations provide that the landlord must either provide a hard copy of the guide or email an electronic copy (if tenants accepts emails) to the tenant. The landlord does not have to reserve the document whenever it is updated by government however, where a replacement tenancy has arisen the landlord must supply the most up to date version to the tenant.
Additionally, a landlord will also be unable to serve a section 21 notice if he has failed to protect a tenant’s deposit.
A landlord must also protect a tenant’s deposit in an approved scheme within 30 days of the deposit being received. A tenant can make an application to the court for an order for three times penalty payment or for the deposit to be returned or protected.
If you are a landlord and are unsure as to your statutory obligations, or if you require further advice or information please contact a member of our Litigation Team on 01388 604691.