A series of articles looking at the new rules regarding section 21 notices – applicable in England only – for tenancies created after 1 October 2015.
Prerequisites for serving a section 21 notice – Energy Performance Certificate
Section 21 having already been successfully used to penalise landlords who fail to comply properly with the deposit and HMO licensing regulations, new prerequisites have now been added to the list.
The first of these is the requirement to comply with section 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012.
What is this?
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.
Presumably the regulation will still be subject to the exceptions to the requirement which are set out in (5) and which include certain protected buildings, buildings intended to be used for less than four months of the year, etc.
The following points spring to mind:
What about HMOs?
Currently many HMO landlords do not serve an EPC on the basis that section 6(1) refers to a ‘building’ and an HMO room is not a ‘building’. However my understanding is that you do need to have an EPC for the building as a whole.
So presumably it is this EPC which will need to be given to the tenant – the EPC for the whole building.
What are your views on this? Do you agree? Or do you think HMOs are exempt altogether? *
What about late service?
Inevitably many landlords are not going to be serving the EPC at the start of the tenancy, either by mistake or because they are unaware of the new rules.
Will they have irrevocably have lost their chance to use section 21?
My reading is probably no, they will not, as the regulation simply says it should be given. It does not say when.
Admittedly it does refer to “the person who ultimately becomes the buyer or tenant” which could imply that it needs to be given before that person actually becomes the buyer or tenant.
But not necessarily.
However my advice to landlords is that you should take care to avoid such arguments by making sure that the EPC is served either before the tenancy agreement is signed or, at the latest, at the time it is signed.
Otherwise, you may face an argument at court. And even though you may win such an argument, all arguments at court are best avoided if you can, as they just create delay and expense.
The need for proof
Landlords (and their agents) will also need to take steps to ensure that service of these documents can be proved.
My advice would be to get the tenant to sign and date a copy of the EPC and retain this with their copy of the tenancy agreement. A receipted copy is one of the best ways of proving service.
However, uou need to have SOME form of proof otherwise, as sure as eggs is eggs, your tenants will claim that they have never had it. Which could prove fatal to your section 21 eviction claim.
If you are commenting can you please try to confine your comments to the EPC certificate issue – there will be other posts on the other points.
- It now looks as if HMOs are exempt from having to serve an EPC certificate