Our story yesterday on the fall-out from a legal case last year, where a landlord could not serve a Section 21 notice, aroused interest – and questions.
In the Caridon Property Ltd v Monty Shooltz case, the landlord had not served the tenant with a current gas safety certificate before the tenant moved in.
The county court judge, who heard the appeal and is a prominent housing expert, ruled that this was a breach which could not be rectified by subsequent service of the certificate.
One of the comments posted on EYE yesterday raised the issue, suggesting our story had been poorly written: “I think that it’s the clarification between pre- deregulation tenancies and post- deregulation tenancies that needs sorting.
“Deregulation deals with prescribed information required for tenancies after 1 October 2015, tenancies prior were not subject to prescribed information so the question is, can the legislation/judgement be applied retrospectively?”
We asked the National Landlords Association, which is leading the charge in demanding clarification from the Government, about this.
A spokesperson told us: “On the pre/post Act issue there has been some confusion because from 1 October 2018 some provisions of the Act were extended to all ASTs even those which began prior to 2015.
“However, the prescribed information requirements and sanctions were not extended.”
So, there is still lack of clarity.
Nor is it clear as to whether other possible ‘breaches’ where information is not supplied before the start of a tenancy can be rectified.
Agents and landlords are meant to give tenants the latest version of the Government’s How to Rent leaflet. But when?
The NLA says that failure to serve this notice at the start of a tenancy can be rectified at any time before a Section 21 is required.
In other words, it is best practice to serve it upfront, but an omission can be dealt with subsequently.
Energy Performance Certificates should also be served to tenants, but how crucial the timing is has not been clarified in law, with the issue yet to be tested in court, said the NLA.
Comments (5)
to add to the ambiguity, dont forget you can only serve the How to Rent Guide electronically, if you have the tenants permission to do so, which from my experience most agents do not obtain. Failure to obtain permission is non compliance, so any Section 21 notice would be invalid.
the actual legislation relating to the prescribed information can be found in the *The assured shorthold tenancy notices and prescribed requirements (england) regulations 2015
http://www.legislation.gov.uk/uksi/2015/1646/pdfs/uksi_20151646_en.pdf
The How To Rent guide is not on of the pieces of prescribed information covered by Section 21A or B of the Housing Act (introduced by the Deregulation Act 2015 sections 38,39). The How To Rent guide must be served but there is no time limit and no link between section 21 notices and the How To Rent booklet. I believe that there is an error in the AST PI Regs 2015 (compare the start of regulation 2 & 3) which should make the How To Rent booklet Prescribed Information under Section 21B of the Housing Act. If this link is made elsewhere, then there is still no time limit imposed, just that the booklet has to be served before a section 21 notice.
Regulation 2 of AST PI Regs 2015 only sets the Gas Safety Certificate and EPC are documents that must be served under Section 21A of the Housing Act.
For the Gas Safety Certificate, Gas Safety (Installation and Use) Regulations 1998 regulation 36 states the latest certificate must be served before the tenant moves in. Failure to do this is uncorrectable (see Caridon Property Ltd v Monty Shooltz where the certificate was served 11 months late, not obtained 11 months late).
For EPCs, regulation 6(3) of Energy Performance of Buildings (England and Wales) Regulations 2012 does allow you to delay the service of an EPC but regulation 6(5) states that one must be given to the ultimate renter/buyer. There is no time limit for regulation 6(5). I assume that this is something that the majority of estate agents rely on – the ‘EPC’s shown on every property portal I have seen do not comply with the requirements of regulation 9 (e.g. property address) and I’ve never been given an EPC at a viewing or with the printed property details. This hasn’t been tested in court and is just my layman’s understanding of the acts/regualtions and https://nearlylegal.co.uk/2018/02/i-can-serve-gas-safety-certificates/
Health & Safety Executive: “By law landlords must carry out an annual gas safety check and provide tenants with a copy of the record of that check. New tenants should receive a copy before they move in and existing tenants should get a copy within 28 days of the annual check being done”.
Wasn’t the story over a gas safety check done 11 months late?
If you forget about prescribed information for a second and look at EPC’s and Gas Safety separately:
The Energy Performance of Buildings Act requires any prospective buyer or tenant to be provided with a copy of the EPC at the earliest opportunity or at the time of the viewing.
CPR also requires you to provide a copy of the EPC as it is classed as material information. So if you don’t supply the EPC at all, you begin a tenancy breaching those 2 regulations from the get go.
Looking at Gas Safety, The Gas Safety (Installation and Use) Regulations 1998, states that the landlord must maintain gas installations and provide the certificate of that check, within 28 days of the check being carried out to existing tenants and the certificate must be supplied before the tenants occupies the property, for new tenancies.
So yes you may moan that you cant retrospectively serve these certificates for a section 21 but why should you be able to when it is very clear that you need to serve them basically when viewing taking place (EPC) and the start of the tenancy (GAS).
Form 6a for serving notice, the notes page that accompanies it does state that if these documents aren’t served then it can not be used, but once the documents are served then you can then use the form to gain possession. The form doesn’t guarantee that you will successfully gain possession as above you have breached at least 3 pieces of legislation.
All 3 pieces of legislation were in force before 2015 so pre or post deregulation the same situation applied you did not follow the law.
Oddly enough, reading more into the wording of the legislation, it would seem to me that the requirement is not to serve a current gas safety certificate, but the latest gas safety certificate. That being said, one will of course be in breach of gas safety requirements if the certificate had expired by the time the tenancy commenced.