The Court of Appeal on section 21 notices and EPC requirements.
On 23rd June 2021, the Court of Appeal in Minister v Hathaway  EWCA Civ 936 handed down a judgement relating to section 21 notices and Energy Performance Certificates (EPC) in rentals. This article will summarise how the case arose, the court’s position and what this means for landlords moving forwards.
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Why did the case go to court?
Legal notices can be invalidated if landlords have failed to obey prescribed legal requirements (21A (1), Deregulation Act 2015). Under Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646), prior to serving a section 21 notice a landlord must have given the tenant an EPC and a gas safety certificate (where necessary) to comply with their legal requirements.
In this case, a landlord had granted a tenancy that later became a statutory periodic tenancy. Nearly 10 years later, in December 2018, the landlord served a section 21 notice to seek possession of the property. A section 21 notice is an eviction notice that starts the legal process to end an assured shorthold tenancy. Under this notice, a landlord does not have to give grounds or reasons for repossession (as they do under section 8 notices, for example). However, the tenant fought the landlord’s notice by arguing that they had not been supplied with an EPC and that the notice was therefore invalidated.
What did the court say?
The Court of Appeal was therefore asked to consider the validity of the section 21 notice in light of the fact that the landlord had failed to provide the tenant with an EPC prior to serving the notice for possession.
The Court of Appeal ruled that the section 21 notice was in fact valid for Regulation 2 (mentioned above) does not apply to tenancy arrangements that have been granted before 1 October 2015.
Significantly, the case recognised a category of tenancies (though likely a very small category) where there is no requirement to provide an EPC certificate to tenants.
The opinions on this page are for general information purposes only and do not constitute legal advice on which you should rely.