S21 served expired EPC!

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    S21 served expired EPC!

    Hi All
    Hope you can help. I served a S21 notice on my tenants giving them 6 months notice to leave. The actual tenancy expired in August 2021 but with the Covid rules i had to give 6 months notice which means they have to be out by November.

    The notice was served May this year but I have just realised that the Energy Performance Certificate I attached to the S21 expired in 2020!

    So does that make the S21 notice invalid?

    If it is invalid then is it a simple case of giving 2 months notice again or do I need to get a new EPA certificate and serve another S21 notice.

    Help appreciated.
    Thanks.



    #2
    If the EPC was valid at the start of this tenancy you're fine but you'll need to get a new one before advertising/letting again.

    Comment


      #3
      Also they don't 'have' to be out when the s21 expires, only the courts and Bailiffs can make them go.

      Comment


        #4
        Originally posted by 1600e View Post
        If the EPC was valid at the start of this tenancy you're fine but you'll need to get a new one before advertising/letting again.
        The shorthold assured tenancy has been renewed each year over several years with the same tenants. It renewed on 25 August 2020 for 1 year unfortunately the EPC started on 10 August 2010 so I guess it expired on 10 August 2020. So the EPC had already expired when the most recent tenancy renewed.

        So does that make S21 invalid. The S21 states tenants have to be out in November, so I guess that is no longer the case and I would have to get a new EPC and serve S21 notice again with 4 months notice. Correct?

        Comment


          #5
          Originally posted by Worriednow View Post
          So does that make S21 invalid. The S21 states tenants have to be out in November, so I guess that is no longer the case and I would have to get a new EPC and serve S21 notice again with 4 months notice. Correct?
          No.

          Are you a worried landlord or a tenant clutching at straws? Advice remains the same.

          Comment


            #6
            Originally posted by boletus View Post

            No.

            Are you a worried landlord or a tenant clutching at straws? Advice remains the same.
            I don't think it does.. The first time I've served one of these and it clearly states in the guidance notes that a EPC should be included. Although nothing about dates. So seeking advice.

            Comment


              #7
              Next time, do not renew, let the tenancy go periodic, that way you don't get into any issues with documents and dates.

              Comment


                #8
                The requirement is that whoever serves the section 21 notice has complied with regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012.

                Which says that "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."

                So, until someone interprets it differently in a senior court, you have to have given the EPC when (possibly before) the tenant first moved in. It doesn't matter if it subsequently expired.

                There's always a risk that at some pint a court will decide because a renewal is a new tenancy, the tenant "becomes" the tenant again when it renews - but the word "ultimately" seems to make that less likely.
                And that doesn't seem to be the case at the moment.
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #9
                  Did you give them a copy of it while it was valid, or only after it expired when you served the s21?

                  "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."

                  It doesn't say it has to be given within so long before the tenancy starts. It can probably be argued that a valid certificate given say August 2015 before they first became a tenant still fulfils the terms of the requirement though the latest tenancy started 2020.
                  I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                  I do not answer questions through private messages which should be posted publicly on the forum.

                  Comment


                    #10
                    Unfortunately I simply renewed the tenancy like I have been on a yearly basis. So when I last renewed with them I didn't give a EPC, we just renewed amicably. It's only since serving the S21 notice that I realised I should have given them the EPC when they renewed last year, except it had already expired before the renewal took place (something I realised yesterday). And now I have realised the same EPC is obviously not valid for the S21 notice I served in May this year because ( yes this is stupid.of me) I only just realised yesterday that it has a 10 year validity.

                    So does that mean the tenancy renewal itself was illegal as well?

                    And back to the original problem, do I have to serve a new S21 notice to evict them?

                    I think the 2015 point you make only applies where a shorthold assured tenancy has expired and then continues on a statutory periodic tenancy by default. In this case a new tenancy was signed every year so it was a renewal of a assured shorthold tenancy. So I don't think that can be argued?

                    Comment


                      #11
                      Originally posted by Worriednow View Post
                      I think the 2015 point you make only applies where a shorthold assured tenancy has expired and then continues on a statutory periodic tenancy by default. In this case a new tenancy was signed every year so it was a renewal of a assured shorthold tenancy. So I don't think that can be argued?
                      I think you have fundamentally misunderstood the responses that you have received.

                      Do what you think best.
                      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                      Comment


                        #12
                        Gov.uk says "You must order an EPC for potential buyers and tenants before you market your property to sell or rent." A simplistic view I know but if you didn't market the property you don't officially need one.

                        Comment


                          #13
                          Never trust government guidance, it's very simplified.
                          If you're a landlord you have to give a tenant a copy of the EPC before the start of the tenancy.
                          If you sell a house, you have to give the buyer a copy of the EPC before completion.

                          You have to show it as part of marketing a property, but that's not the limit of what you're required to do.
                          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                          Comment


                            #14
                            So do you need to issue a copy of the EPC at the start of every new tenancy with the same tenants?

                            Comment


                              #15
                              Yes. Thats one of the many reasons not to issue replacement tenancies.

                              Comment

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