S.21 Notices- confusion regarding the Prescribed Requirements Regulation

By now there are numerous articles dealing with the validity of S.21 notices post Deregulation Act 2015 (“DA”). However, recently I have encountered a number of cases where there is still some confusion. This seems to be surrounding the DA and the validity of a S.21 notice being served where the prescribed requirements have not been complied with. The DA brought in several important provisions, many pertaining to the protection of tenants. It is important for practitioners, landlords and tenants, not only to be aware of the regulations, but also to understand them so that they are used as parliament intended. This article focuses on some of the issues pertaining to prescribed requirements to bring some clarity to this area.

 

THE LEGISLATION

 

Regardless of when the tenancy began it is important to familiarise yourself with, and understand, the legislation which gives rise to the prescribed requirements.

 

The Deregulation Act 2015 came into force on 1 October 2015 and made changes to the S.21 procedure. From October 2015, the changes brought about by the DA only applied to Assured Shorthold Tenancies (“AST”) in England granted on or after 1 October 2015. Following a 3 year “transitional period”, the DA 2015 provisions apply to all ASTs, whenever the AST was granted.[1] Save for the exception as outlined below.

 

Inherently the basic position is that a landlord cannot serve a valid S.21 notice where they have failed to provide the tenant with a copy of the prescribed requirements.

 

S38 of the DA inserted S.21A into the Housing Act 1988 (“HA”).

S21A (1) states that “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”.

S.21A (2) states that “The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to—(a)the condition of dwelling-houses or their common parts, (b)the health and safety of occupiers of dwelling-houses, or (c)the energy performance of dwelling-houses.”

 

In essence S.38 of the DA, by inserting S.21A (2) into the HA deals with the issue of prescribed information as one to be set out in other (secondary) legislation. The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 is the secondary legislation setting out such requirements. The Prescribed Legal Requirements relate to the energy performance certificate[2] (“EPC”) and gas safety certificate (“GSC”). [3]

 

S.39 of the DA 2015 inserts S. 21B into the HA. The Prescribed Information Requirements relate to the “How to rent: the checklist for renting in England”, as published by the Department for Communities and Local Government.[4]

 

HOW TO RENT CHECKLIST

 

For the purposes of S.21B of the HA, the landlord must supply the tenant with a copy of the current version of How to rent: The checklist for renting in England.[5] There is no requirement to provide further copies of the booklet each time a different version is published during the tenancy.  Furthermore, if the landlord provided the tenant with the booklet under an earlier tenancy and that version is the latest version, the requirement does not apply.

 

The prescribed information does not need to be supplied to any tenancy predating October 2015 that has not been replaced or renewed. If there is a written renewal or a tenancy turns ‘statutory periodic’ at the end of the fixed term and the booklet has changed on that day, the updated one must be provided.

 

The legislation does not provide for a time limit to comply. Therefore, providing that the tenant is given a copy of the booklet prior to the service of a S.21 notice the notice will be valid.

 

GAS SAFETY CERTIFICATE/ ENERGY PERFORMANCE CERTIFICATE

 

The requirement to provide the tenant with a GSC was prescribed by reference to existing duties of the landlord to provide the tenant with a gas safety record (“GSR”) under regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (“The Gas Safety Regulations”). These regulations contain distinct duties ensuring that every landlord:

  • carry out an annual inspection for the purpose of ensuring installations are safe; [6]
  • must provide the tenant with a copy of the GSR within 28 days of the check: [7]
  • must provide a copy of the last record made in respect of each appliance or flue to any new tenant of premises to which the record relates before that tenant occupies those premises.[8]

 

Crucially for the validity of a S.21 notice, the 2015 Regulations states that for the purposes of S.21A of the HA, the requirement 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.” Henceforth there is no timescale for the landlord to provide the GSC. The 28-day time limit imposed above does not apply to compliance with the prescribed legal requirements for the service of a S.21 notice.

 

The Court of Appeal confirmed this position in Trecarrell House Ltd v Rouncefield [2020] EWCA Civ. In a majority two-to-one decision the Court found that on the correct construction of S.21A of the HA and Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, a landlord failing to provide a tenant with a copy of a GSC before the start of a tenancy does not create an absolute bar on landlords subsequently relying upon the S.21 eviction procedure. They can remedy that default by providing the certificate before serving a S.21 notice (so long as the certificate was in force at the commencement of the tenancy). Likewise, a failure to provide a copy of any further GSC which relate to subsequent inspections is not fatal providing they are given before a S.21 notice is served.

 

The 2015 regulations governing the prescribed requirements only apply (by regulation 1(3)) to tenancies commencing on or after October 2015. Therefore, for tenancies predating October 2015, a S.21 will be valid even if the landlord has failed to give the tenant a copy of the GSC.

 

There is no authority on the impact of failing to provide an EPC and the validity of a S.21 notice. However, it is arguable that the court would take a similar approach to the GSC.

 

CONCLUSION

 

As I have highlighted, failure to provide prescribed information at the start of a tenancy does not automatically invalidate a S.21 notice. A detailed look needs to be taken of the tenancy agreement and situation surrounding such information prior to the service of a S.21 notice. Failure to provide a GSC/ “How to rent: The checklist for renting in England” at the start of a tenancy is not fatal to a S.21 claim but must be provided before the S.21 notice is served (unless the tenancy pre-dates October 2015).

 

What has not been tested by the court is the issue of the landlord who has not provided any gas safety check and consequently has no GSC for the period before the tenant went into occupation to provide to the tenant. There is no clear way that this could be rectified. However, does that mean that a landlord can be permanently barred from using the S.21 process and be left with no other recourse to evict a tenant? Such an approach seems unjustly harsh. Weighed into the balance is the need to protect tenants and avoid landlords being able to justify their wrongdoing (by never providing GSC or completing gas safety checks).

 

 

 

[1] Section 41(3) Deregulation Act 2015

[2]Regulation 2 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646

Regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012

[3] Regulation 2 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646

Regulation 36 of the Gas Safety (Installation and Use) Regulations 1998

[4] Regulation 3 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646.

[5] Regulation 3 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI 2015/1646

[6] Regulation 36(3) Gas Safety (Installation and Use) Regulations 1998

[7] Regulation 36(6)(a) Ibid.,

[8]Regulation 36(6)(b) Ibid.,