I was criticised by a member on our Landlord Law forum recently for saying (in effect) that I did not really know the answer to this – so I thought I would air it here and see if anyone has any firm views.
It’s about the new section 21 requirement, for tenancies in England which start or are renewed on or after 1 October 2015, to serve a valid EPC at the start of a tenancy. Does this or does this not include HMO rooms?
Let’s follow the legislation trail and see what we find.
We first need to look at the Deregulation Act, which is where it all starts.
s38 of the Deregulation Act 2015:
38 Compliance with prescribed legal requirements After section 21 of the Housing Act 1988 insert—
“21A Compliance with prescribed legal requirements (1)A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.
(2)The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to—
(a)the condition of dwelling-houses or their common parts,
(b)the health and safety of occupiers of dwelling-houses, or
(c)the energy performance of dwelling-houses.
So what that is doing is saying that section 21 is amended to introduce various new requirements. The detail of which are set out in regulations – in this case, the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015
This says as follows:
Compliance with prescribed legal requirements 2. —
(1) Subject to paragraph (2), the requirements prescribed for the purposes of section 21A of the Act are the requirements contained in—
(a) regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012 (requirement to provide an energy performance certificate to a tenant or buyer free of charge);
So with specific reference to EPCs, the regulations are saying that the obligation to provide an EPC contained in reg 6(5) of the Energy Performance of Buildings etc regs is now required in order to serve a valid section 21 notice.
So finally, we need to take a look at those regulations.
What 6(5) (the section we are referred to) actually says is:
(5) The relevant person must ensure that a valid energy performance certificate has been given free of charge to the person who ultimately becomes the buyer or tenant.
As you can see, there is nothing there about making an exception for HMO properties.
This is why some people are saying that the EPC should be provided, even if it is an HMO. It may well be that for the purposes of the s21 requirements there IS no exception.
Normally EPCs are not required for rooms – as the requirement for an EPC is just for ‘buildings’. But does this apply in the context of the section 21 rules where the requirement just refers to one section of the regulations? Or do we assume that the limitation to ‘buildings’ comes with it?
My Landlord Law Forum critic asked me tersely
Surely it is possible to ask someone, either the Government office responsible for the Guide to Renting, or the DCLG, to provide clarification?
However this isn’t going to help – only a Judge can create a legal precedent on the interpretation of legislation and a Judge is only going to be bound by the wording of the statute, not by what an official at the DCLG says.
What’s your view? Or is there a piece of connecting legislation which I have missed, which clears this up?