The Court of Appeal has recently held that there is no requirement to serve a tenant with an Energy Performance Certificate (EPC) where the assured shorthold tenancy (AST) pre-dated 1st October 2015 and the landlord seeks possession under s21 Housing Act 1988.

 

In the case of Minister v Hathaway & Hathaway [2021] EWCA Civ 936, the unanimous decision of the Court was that where the tenancy commenced prior to 1st October 2015 and had become periodic prior to 1st October 2015 the prescribed information requirements were not applicable.

 

The tenancy in this case had begun on 19th March 2008 with a fixed term of one year. From 19 March 2009 it was a statutory periodic tenancy. Having not previously served an EPC, the landlord served a s21 notice on the tenant on 6th December 2018. The claim for possession was initially dismissed; that decision had been overturned on appeal to a Circuit Judge. The tenant appealed that decision.

 

Arnold LJ delivered the judgment of the Court and considered the legislative history behind the Deregulation Act 2015, which inserted ss21(8)-(9) and 21A and 21B into the Act. For tenancy agreements which commenced on or after 1st October 2015, landlords have been obliged to comply with the prescribed information requirements imposed by ss33-40 of the Deregulation Act 2015. Section 41 provides limits on the tenancy agreements to which those requirements apply. Further, the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (‘the 2015 Regulations’) provided that the requirements were imposed upon any ASTs which were in existence on 1 October 2018. The tenant argued that pursuant to s41(3) of the Deregulation Act 2015, this tenancy was an AST which was ‘in existence’ on 1 October 2018 and therefore there had to be compliance with the prescribed requirements. However Arnold LJ disagreed with that argument, agreeing instead with the landlord’s submission (and HHJ Simpkiss), that this was not an AST granted on or after 1 October 2015 consequently no EPC was required to have been served. Arnold LJ also rejected the tenant’s contention that Regulation 1(3) of the 2015 Regulations was ultra vires. Whilst that Regulation restricted the application of Regulation 2, it was within the power conferred upon the Secretary of State by s21A(2) of the Housing Act 1988.

 

The same reasoning would be applicable to the provision of a Gas Safety Certificate.

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