Under current legislation, one way a landlord can seek possession is by serving a Section 21 notice on the tenant, giving them at least two months’ notice once their fixed-term tenancy has ended.
This is set to change with the Renters’ Rights Bill, which was introduced to Parliament on 11 September 2024.
Under the current Section 21 procedure, a landlord is not required to provide a reason for the eviction, which is why the procedure is often referred to as a ‘no fault’ eviction.
The Renters’ Rights Bill will ban Section 21 ‘no-fault’ evictions for new and existing tenancies. The government hopes the ban will take place by next summer, if not sooner.
Currently, the length of time required to evict a tenant varies depending on the individual circumstances, the court and whether the application is contested.
Until the Bill becomes law, landlords are still able to serve Section 21 notices in order to regain possession of their property. It is advisable to review your current tenancy agreements and consider taking action before the Bill takes effect.
The requirements that a landlord must to be aware of and comply with before they are able to serve a valid Section 21 notice are known as the Prescribed Information Requirements.
These requirements were brought into force with the Deregulation Act 2015 and Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 and are as follows:-
1.Gas Safety Certificates
Under the Gas Safety Regulations, a landlord must provide a valid Gas Safety Certificate to the tenant before they can occupy the property.
The landlord is also required to carry out appropriate checks every 12 months and provide a copy of the Gas Safety Certificate to the tenant each time.
The recent case law on providing Gas Safety Certificates to the tenant is summarised below.
2.Energy Performance Certificate
The tenant must be provided with a valid EPC.
The landlord can provide the tenant with a valid EPC at any time before service of the notice.
3.How to Rent Guide
The tenant must have been served a ‘How to Rent’ guide which was in force at the time they moved into the property before a Section 21 notice can be served.
4.Tenancy Deposit and Prescribed Information
If the tenant has been paid a deposit in relation to the tenancy, the deposit must be protected within 30 days of receipt by the landlord or their managing agents.
The deposit must be paid into a government approved Deposit Protection Scheme and the tenant will need to be provided the prescribed information relating to the scheme.
Recent case law on Gas Safety Certificates
Caridon Property Ltd v Monty Shooltz
In this case, the landlord served a Section 21 notice on the tenant Mr Shooltz and upon expiry of the notice, issued possession proceedings at the County Court.
On review of the papers, the judge held that as a Gas Safety Certificate was provided to the tenant eleven months after the tenancy began, the regulations had not been complied with. As such, the judge held that the Section 21 notice was invalid.
The landlord appealed the decision. However, the judge on appeal upheld the original decision, stating that Section 36(6)(b) of The Gas Safety (Installation and Use) Regulations 1998 must be complied with at the start of the tenancy and that this was a ‘once and for all’ chance for the landlord.
However, following Caridon, the position has changed as shown in the following cases.
Trecarrell House Limited v Patricia Rouncefield
In this case, Ms Rouncefield took up an Assured Shorthold Tenancy in a property owned by Trecarrell House Limited in February 2017. The flat had central heating and hot water provided by a gas boiler located elsewhere in the property complex. However, there were no gas appliances located in the flat.
The tenant was not provided with a Gas Safety Certificate before moving into the flat, nor was a copy displayed in a prominent position at the property. The tenant was provided with a Gas Safety Certificate dated 31st January 2017 in November 2017, this being nine months after she had moved in.
The landlord served a Section 21 notice and issued possession proceedings at court. The tenant defended the claim on grounds that she had not been provided with a Gas Safety Certificate before she moved into the flat.
The County Court rejected the tenant’s argument. However, this was successfully appealed. The landlord then took the case to the Court of Appeal.
In the Court of Appeal, the landlord argued that the 2015 Regulations only placed an obligation on landlords to provide a Gas Safety Certificate to tenants and not that there was an obligation to do so before the tenant moved into the property.
The court held that a landlord who has failed to provide their tenant with a Gas Safety Certificate before the tenant moved into the property is not prevented from using a Section 21 notice to recover possession of the property, so long as the landlord provided the tenant with a copy of the Gas Safety Certificate (that existed before the start of the tenancy) before serving the Section 21 notice.
Byrne v Harwood-Delgado
In this case, the tenant took up occupation of the property in August 2019. The landlord had stated that a Gas Safety Certificate was in place at this time. The landlord then provided the tenant with a Gas Safety Certificate dated 16th September 2019 in November 2019 and then provided another Gas Safety Certificate in October the following year.
In November 2020, the landlord served a Section 21 notice and issued possession proceedings.
At the initial hearing in January 2022, the Deputy District Judge ruled in favour of the landlord stating that the late delivery of the Gas Safety Certificate did not invalidate the Section 21 notice. However, the tenant appealed the decision.
The appeal was heard in May 2022 by Her Honour Judge Bloom. HHJ Bloom referred to the Trecarrell House case and noted that the facts in this case were different as here there had been a substantive failure and breach of duty as the landlord had not obtained a Gas Safety Certificate prior to the start of the tenancy.
Such a breach could not be remedied by providing another Gas Safety Certificate at a later date.
As a result, the landlord was barred from using the Section 21 possession procedure as the Section 21 notice was held to be invalid.
Consequences for landlords if the Byrne v Harwood-Delgado decision is followed by other courts
Whilst Byrne v Harwood-Delgado is not a binding decision as it is a County Court case, the consequence is that if a landlord does not carry out a gas safety check and does not obtain a Gas Safety Certificate prior to the start of an Assured Shorthold Tenancy, they will be unable to serve a valid Section 21 notice.
A landlord, would, therefore only be able to seek to recover possession if they serve a Section 8 notice by relying on one of more grounds for possession as set out in Schedule 2 of the Housing Act 1988.
To summarise
If a landlord does not carry out a gas safety check before their tenant moves into the property, the landlord cannot serve a valid Section 21 notice and therefore must serve a Section 8 notice in order to obtain possession.
If a landlord has carried out a gas safety check but does not provide a copy of the Gas Safety Certificate to the tenant before they move into the property, the landlord will need to provide a copy of the certificate and any subsequent certificates before they are able to serve a Section 21 notice.
If you are a residential landlord and require further information in relation to your options, please get in contact with our dispute resolution team by emailing lab@salehs.co.uk and ib@salehs.co.uk or by calling 0161 434 9991.
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