Commercial Property Expert, Solicitor, David Redgate looks at a recent case which highlights the importance to Landlords of providing tenants with a valid EPC and gas safety certificate for properties let after 1 October 2015.

In the case of Minister v Hathaway and another [2021] EWCA Civ 936 (23 June 2021) (Arnold, Baker and Henderson LJJ), the Court of Appeal considered the validity of a landlord’s notice to seek possession under s.21 Housing Act 1988. In this particular case, the tenancy had commenced prior to October 2015 and the landlord had not provided an EPC to the tenant before service the notice.

Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646) (2015 Regulations) states that, for the purposes of section 21A of the HA 1988, the landlord cannot serve a notice seeking possession under section 21 of the HA 1988 unless it has provided the tenant with an energy performance certificate (EPC) and gas safety certificate (GSC).

However, critically in this case, regulation 2 of the 2015 Regulations did not apply to tenancies granted before 1 October 2015 (regulation (1)(3), 2015 Regulations). When the 2015 Regulations were made, the Secretary of State had power to apply them only to tenancies granted on or after 1 October 2015 (section 41(1) and (2) of the Deregulation Act 2015 (DA 2015)).

This judgment will be welcome news to all landlords who have granted residential tenancies prior to 1 October 2015.

The case also acts as an important reminder to residential landlords who have granted tenancies post 1 October 2015 of the importance of providing the tenant with a valid EPC and gas safety certificate in the event that they need subsequently to obtain possession of the property, relying on section 21 of the Housing Act 1988, without grounds such as non-payment of rent or other breaches of tenancy covenant.

All landlords should also be aware that a failure to give the tenant a GSC or EPC can be punishable in other ways including criminal sanctions.

It remains to be seen whether the Secretary of State does extend the application of regulation 2 in the future, and the government's proposals to abolish section 21 may well be a factor in this.

For further advice on your property portfolio, please contact David Redgate. For a tenancy dispute, please contact a member of our Dispute Resolution team.

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