Assured Shorthold Tenancy: Q&A
For an assured shorthold tenancy granted after 1 October 2015, where the landlord failed to serve the 'how to rent' guide, an Energy Performance Certificate or gas safety certificate, and the tenant has not breached any covenants, how can the landlord seek possession?
Section 21 notice
Where a tenant has not breached any covenants, a landlord may seek possession of the property by serving a notice under section 21 of the Housing Act 1988 (HA 1988), which gives at least two months’ notice, to expire on or after the expiry of the fixed term.
In order to serve a valid section 21 notice, the landlord must comply with the section 21 pre-conditions to service—see Practice Note: Assured and assured shorthold tenancies—terminating under Section 21—pre-conditions to service.
'How to rent' guide
References: Housing Act 1988, s 21B
The landlord must provide the prescribed information before a section 21 notice can be served. At the time of writing, this information is in the current version of the How to rent: the checklist for renting in England published by the Department for Communities and Local Government (now Department for Levelling up, Housing and Communities).
Pursuant to the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, SI 2015/1646, reg 3 (the Prescribed Requirement Regulations) this information may be provided to the tenant in hard copy or by emailing an electronic copy to the tenant where the tenant has agreed to accept service of notices and other tenancy documents by e-mail.
Gas safety certificate
The landlord is also obliged to provide the tenant with a gas safety certificate under HA 1988, s 21A, the Prescribed Requirement Regulations, SI 2015/1646, reg 2, the Gas Safety (Installation and Use) Regulations 1998, SI 1998/2451, reg 36(6) or (7) at the outset of the tenancy and before serving a section 21 notice.
References: Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760
The Court of Appeal in Trecarrell House Ltd v Rouncefield confirmed that a landlord can rely upon a gas safety certificate where it has been served late and after the tenant has moved into the property, provided it was served prior to serving the section 21 notice (see News Analysis: Section 21 notice valid despite late compliance with gas safety regulations (Trecarrell House Ltd v Rouncefield)). For more information, see Practice Note: Landlords' duties—smoke alarms, carbon monoxide detectors, gas and electrical safety, in particular section: Gas safety.
It is not stated in the query whether a gas safety check had been carried prior to the tenant moving into the property. The Court of Appeal decision in Trecarrell House did not address this point and it remains unclear whether the landlord can rely upon a gas safety check carried out after the tenant has moved into the property.
Energy Performance Certificate (EPC)
The landlord must also provide the tenant with an EPC under HA 1988, s 21A, the Prescribed Requirement Regulations, SI 2015/1646, reg 2, and the Energy Performance of Buildings (England and Wales) Regulations 2012, SI 2012/3118, reg 6(5) (the EPC Regulations) at the outset of the tenancy and prior to serving a section 21 notice.
It is not clear whether, if challenged, a court would adopt the approach taken in Trecarrell House and decide that the landlord may rely upon an EPC where provided to the tenant after the tenant has moved into the property but before a section 21 notice is served.
Some commentators interpret the combination of HA 1988, s 21A, the Prescribed Requirement Regulations and the EPC Regulations as providing that failure to provide an EPC to the tenant before the tenancy commences could be an absolute defence to a section 21 notice. It is unclear how the courts will approach this issue. In the absence of clarity from the courts, it remains best practice to ensure the landlord serves an EPC at the outset to avoid any potential challenges as to the validity of the section 21 notice.
For further reading, see Practice Notes:
Assured and assured shorthold tenancies—granting
Coronavirus (COVID-19)—implications for property
Quick guide to landlord’s coronavirus (COVID-19) remedies
This content was first published on the Lexis Nexis Ask Forum. For more information please contact Hannah Turner or your usual Charles Russell Speechlys contact.
