Court Rules That Landlord Was Not Required To Provide An EPC For A Pre-2015 Tenancy

In a judgment handed down by the Court of Appeal in the case of Minister v Hathaway [2021] EWCA Civ 936, it was ruled that the Landlords of an assured shorthold tenancy (that commenced prior to 1^st October 2015) could serve a Section 21 notice on the Tenant despite the fact that the Landlords hadn’t previously provided the Tenant with an Energy Performance Certificate (EPC).

Minister v Hathaway [2021] EWCA Civ 936

Case background

The 12-month fixed-term assured shorthold tenancy, at the centre of this dispute, was entered into by the Tenant (George Minister) and Landlords (Darran and Susan Hathaway) in March 2008. It became a statutory periodic tenancy in March 2009 as a result of Section 5(2) of the Housing Act 1988.

In December 2018, the Tenant was served with a Section 21 notice by the Landlord. However, the Tenant disputed the notice on the basis that the Landlords had not provided them with an EPC.

The Landlords commenced with proceedings for possession of the property in February 2019, to which the Tenant defended on the basis that they had not been provided with an EPC prior to them being served with the Section 21 notice.

Relevant laws

Under the Deregulation Act 2015, it inserted an additional provision into the Housing Act 1988, which stated:

A prescribed requirement is a provision of providing an EPC.

Further, Regulation 2 of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646) outlines that prior to a Section 21 notice being served by a landlord, they must have provided the tenant with an EPC and Gas Safety Certificate.

Court proceedings

In the initial legal proceedings, the Court ruled in favour of the Tenant and that the Section 21 notice was invalid. However, the Landlord appealed this ruling and the decision was overturned, meaning that the Section 21 notice was deemed to be valid. This decision was then appealed by the Tenant to the Court of Appeal, which allowed a second appeal “because the issue is one which has divided judges and commentators”.

Unfortunately for the Tenant, the Court of Appeal ruled that the Section 21 notice was valid as Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646) does not apply to tenancies that have been granted prior to 1^st October 2015.

Comment

Ultimately, the Court of Appeal’s decision means that landlords of properties let under assured shorthold tenancies that were put in place or renewed before 1^st October 2015 are able to serve a Section 21 notice even if they haven’t previously provided their tenants with an EPC or complied with the gas safety regulations.