Here is a question to the blog clinic ‘fast track’ from Rachel who is a landlord
Hello, we rent a flat to a young couple and have done for about 5 – 6 years on a six month rolling shorthold tenancy agreement. The flat was a newly built conversation when they moved in, for the duration of their tenancy we have had problems with the bathroom as it doesn’t seem to have been installed correctly.
In February we agreed to install a new bathroom, in April they asked us not to start work as they have a child with lung problems.
The bathroom has since become much worse and we have advised them that the work needs to be undertaken before it starts to effect the flat below, they have refused and after much toing and froing so we have asked them to move out when their fixed term tenancy agreement ends in October so that we can do the necessary work to the flat.
We have looked into serving the section 21 and it looks like we can’t as the flat doesn’t have a EPC (which we thought it did) what other avenues can we pursue in order to be able to resolve this as they have told us we will not be allowed to access the property at any time for any reason – so we can’t have a EPC done at this stage.
The tenants have been good up until the last 6 months when their personal circumstances changed and we would like to resolve it amicably but we also don’t want to have a flat that is damaged almost beyond repair or cause damage to anyone else’s property at the moment it looks like asking them to move out is our own option to resolve this.
If your tenancy has been running on as a periodic tenancy for the past 5 years then service of an EPC is not a condition of being able to serve a section 21 notice.
This requirement came in with the Deregulation Act 2015 which in this respect came into force in October last year and only applies to tenancies which started or were renewed (eg by a renewal form or new tenancy agreement) on or after 1 October 2015.
I am assuming that this did not happen here and that any formal tenancy or renewal pre-dates 1 October 2015.
So the failure to serve an EPC may put you at risk of a penalty fine (if your Local Authority find out about it) but it does not affect your ability to evict these tenants under section 21.
What you should do
I would suggest that you get the section 21 notice served (there are full details on how to do this on my Landlord Law website) and explain to the tenants that you have a duty to get the repair work done as soon as possible. In particular to avoid it affecting the flat below.
If the works can be done with them there, then say that unless access is given during the notice period of the section 21 notice, you will be starting proceedings for possession the day after the notice expires.
If the works can’t be done with them there, and you are willing to pay for them to stay in alternative accommodation during the time the works are being done (NB the cost of this may be covered by your insurance) – then make this offer, but if so make it clear that the offer will be withdrawn if they fail to reach agreement with you during the section 21 notice period.
So far as what the notice period will be – if your tenancy did initially have a fixed term, then you will be able to serve the simpler notice under the Housing Act 1988 section 21(1). However if the tenancy has been a periodic tenancy from the start, then you will need to give a notice period which ends on the last day of a period of the tenancy under the rules in section 21(4).
If the tenancy HAS been renewed on or after 1 October 2015 then, as you say, you will not be able to serve a section 21 notice unless you can serve an EPC first.
However if the works to the bathroom are necessary and the tenants are refusing access, you can apply to the court for possession on that basis under ground 6 of Schedule 2 of the Housing Act 1988. Your right to do this is not affected by the EPC issue.
To do this you will need to serve a section 8 notice first, citing ground 6, and giving the tenants a two-month notice period (this form should ideally be drafted up by a lawyer, someone who is familiar with this type of work).
However, hopefully, your tenancy pre-dates 1/10/2016 and you can use the section 21 route. Which will be a lot easier for you.
NB The picture above was kindly provided by Sandra Savage Fisher of QuaLETy Lettings – it is not a picture of the bathroom in question in this post.