Lack of an EPC no deterrent to Section 21 possession orders for tenancies which commenced pre-2015.

WR Solicitor & Director Jonathan Leach

A recent appeal court judgement (Minister vs Hathaway and Hathaway 2021) has provided clarity on a matter that had threatened to complicate things for landlords wishing to take back possession of their properties from tenants who had been in residence since prior to 2015.

The case revolved around the failure of the landlord to provide an Energy Performance Certificate (EPC), something which has been a requirement of a shorthold tenancy since introduced as part of the Deregulation Act 2015.

This act added two sections into section 21 of the Housing Act 1988, detailing 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
  • The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to
    1. The condition of dwelling-houses or their common parts,
    2. The health and safety of occupiers of dwelling-houses
    3. The energy performance of dwelling-houses

This means that where no EPC is provided, the landlord is in breach of these requirements and, as a result in this case, the initial hearing found the section 21 notice issued to the tenant was invalid

The landlord appealed this decision, on the grounds that as the tenancy was in place prior to the introduction of the 2015 Act, the requirement it inserted into the 1988 Housing Act was not valid. The appeal went in favour of the landlord but a further appeal was permitted to clarify, given the issue had divided consensus.

The second appeal determined the landlord to be right, that the introduction of the new requirements in the 2015 Act and the associated regulations only apply to assured shorthold tenancies granted on or after 1 October 2015.

Whilst the Secretary of State has since attained the power to extend these regulations to include tenancies in place at this time, he has not, to date exercised this power.

The appeal was dismissed on these grounds, the outcome being that for tenancies which commenced prior to 2015, the lack of an EPC is not a barrier to a section 21 order.

We agree with the outcome and the judges’ analysis on this matter and welcome this judgement and the certainty it creates for pre-2015 tenancies.

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