S21 served expired EPC!

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    #16
    With greatest respect to all. Just got it confirmed by a lawyer you do indeed need a valid EPC when serving a S21 notice. In this case S21 is not a valid notice. This is also confirmed on guidance on UK gov site for issuing one as pointed out by lawyer and technical guidance for serving notice. So those who think it is ok, you are wrong. Those who tried to help thank you.

    Comment


      #17
      Originally posted by jpkeates View Post
      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.
      Yes I didn't give a copy you keep talking about tenancy it's the S21 I am interested in.

      Comment


        #18
        Originally posted by Kape65 View Post
        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.
        Not true, a landlord cannot claim ignorance.

        Comment


          #19
          Originally posted by jpkeates View Post
          I think you have fundamentally misunderstood the responses that you have received.

          Do what you think best.
          ????????????

          Comment


            #20
            With greatest of respect to the lawyer you spoke to, [citation needed].

            you do indeed need a valid EPC when serving a S21 notice
            I don't think anyone here would dispute that a valid EPC needed to have been given to the tenant BEFORE the service of the s21. But if the statement is that a valid s21 need to be in place at the time of service of the s21, that's a [citation needed]. And moreover, your original post was about serving the s21 alongside an expired EPC, without stating whether you have ever previously given a copy of the EPC to the tenant.

            Not true, a landlord cannot claim ignorance.
            That reply made absolutely no comment on ignorance...... It's talking about whether a EPC need to exist / or given if the property was not marketed.

            Yes I didn't give a copy you keep talking about tenancy it's the S21 I am interested in.
            Whether you have given a copy certain document by a certain date in relation to the start of the tenancy etc. is completely relevant to whether you can serve a valid s21 notice.

            If you are now saying the first time you gave the tenant a copy of the EPC was after it has already expired, then yeah the s21 was not valid. If we had started with that, I think this thread would have ended after 1 reply.
            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


              #21
              KTC,

              Fair enough, I think I was very clear, I served a S21 on the tenants in May with an EPC that had already expired unbeknown to me at the time. Although this was served by the agent apparently as a landlord I can't claim ignorance.

              Legislation states that a landlord cannot serve a valid section 21 notice where they have failed to provide the tenant with a copy of a current energy performance certificate (EPC). This is taken from: "ss.21A and 21B Housing Act 1988, as inserted by ss.38 and 39 Deregulation Act 2015; reg 2 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015".

              The landlord should be aware of what prescribed information should be given prior to serving a section 21 notice.

              Comment


                #22
                Originally posted by Kape65 View Post
                So do you need to issue a copy of the EPC at the start of every new tenancy with the same tenants?
                No you don't.
                I suspect that one day a court will interpret the law so that you will have to (which is one reason to avoid replacement tenancies), but the wording of the legislation is helpful.

                The section 21 restrictions simply say that the landlord has to have complied with regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012.
                And that wording is fairly clear and means that you have to have given a copy of the EPC to someone who eventually becomes a tenant.

                And, so far, the interpretation seems to be (quite sensibly) that someone becomes a tenant once, even if there are several tenancies in a series.
                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


                  #23
                  Originally posted by Worriednow View Post

                  Fair enough, I think I was very clear, I served a S21 on the tenants in May with an EPC that had already expired unbeknown to me at the time. Although this was served by the agent apparently as a landlord I can't claim ignorance.

                  Legislation states that a landlord cannot serve a valid section 21 notice where they have failed to provide the tenant with a copy of a current energy performance certificate (EPC). This is taken from: "ss.21A and 21B Housing Act 1988, as inserted by ss.38 and 39 Deregulation Act 2015; reg 2 Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015".

                  The landlord should be aware of what prescribed information should be given prior to serving a section 21 notice.
                  but the legislation doesn't say that.

                  Sections 38 and 39 of the Deregulation Act 2015 allow the government to prescribe certain requirements that, if they are not met can make a section 21 notice invalid.
                  They must be enacted and 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.

                  The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 enacts the requirements.
                  Which amongst other things say that one of the requirements [is] the requirement contained in "regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012(2) (requirement to provide an energy performance certificate to a tenant or buyer free of charge)."

                  And section 6(5) itself says "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."
                  That's all it says.

                  So the question is fairly simple.
                  Before serving the s21 notice has the relevant person (the landlord) made sure that a valid EPC has been given to the person who subsequently become the tenant (and was it free)?

                  And it's "a" valid EPC, so giving a valid one meets the requirement even if it has subsequently become invalid - as long as it was valid when it was given, it satisfies the wording.

                  Obviously, I'm no lawyer, but there's no reference in the legislation to a "current EPC" at all.
                  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


                    #24
                    Originally posted by jpkeates View Post
                    there's no reference in the legislation to a "current EPC" at all.
                    Rather misleadingly, they state current here with a link to the legislation which doesn't mention it at all. Perhaps this was the 'lawyer' who confirmed it?

                    https://england.shelter.org.uk/profe...ancies#title-3

                    A landlord cannot serve a valid section 21 notice where they have failed to provide the tenant with a copy of a current:[17]
                    • energy performance certificate (EPC)
                    • gas safety certificate



                    Comment


                      #25
                      Originally posted by jpkeates View Post

                      So the question is fairly simple.
                      Before serving the s21 notice has the relevant person (the landlord) made sure that a valid EPC has been given to the person who subsequently become the tenant (and was it free)?

                      And it's "a" valid EPC, so giving a valid one meets the requirement even if it has subsequently become invalid - as long as it was valid when it was given, it satisfies the wording.

                      Obviously, I'm no lawyer, but there's no reference in the legislation to a "current EPC" at all.

                      In this case I don't remember whether I did give an EPC when they first took out the tenancy.

                      But regardless EPC expired during the tenancy period 2019-2020. The EPC expired then a few days later the tenancy was renewed, 2020-2021.

                      So at this stage a new EPC should have been sought. During the period 2020-2021 I issued the S21 using the same expired EPC. So even if we assume that an EPC was provided to the tenant in say 2013 and was automatically carried over in the subsequent tenancies, when it expired it expired.

                      Subsequent to the expiration the tenancy was renewed again at this point you can't claim the EPC is valid because it was shown to them in 2013 (for example) because it had expired before the renewal so it didn't exist, the renewal was a new assured shorthold tenancy, maybe if it was a statutory periodic tenancy from 2020-2021 your argument would hold.

                      Comment


                        #26
                        Originally posted by Worriednow View Post
                        In this case I don't remember whether I did give an EPC when they first took out the tenancy.
                        In which case you're slightly screwed, because not doing so isn't lawful and will really mess up your section 21 notice.

                        What about other things you had to do, like provide a Gas Safety Certificate?
                        But regardless EPC expired during the tenancy period 2019-2020. The EPC expired then a few days later the tenancy was renewed, 2020-2021.
                        Noted but irrelevant.
                        It's a new tenancy because it's a renewal, but it's not a new tenant.

                        So at this stage a new EPC should have been sought. During the period 2020-2021 I issued the S21 using the same expired EPC. So even if we assume that an EPC was provided to the tenant in say 2013 and was automatically carried over in the subsequent tenancies, when it expired it expired.
                        Almost all certificates expire, it doesn't matter if it expired in 2020, it matters whether it was valid in 2013 when you gave it to the tenant (or possibly didn't in your case).

                        Subsequent to the expiration the tenancy was renewed again at this point you can't claim the EPC is valid because it was shown to them in 2013 (for example) because it had expired before the renewal so it didn't exist, the renewal was a new assured shorthold tenancy, maybe if it was a statutory periodic tenancy from 2020-2021 your argument would hold.
                        That's an interesting view, but it isn't what the legislation says.
                        And there's a whole community of legal landlord/tenant people who would jump on a case that said that in an instant.
                        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


                          #27
                          jpkeates,

                          I am sorry you are fundamentally wrong let's agree to disagree. You seem to be looking at this from a philosophical point of view rather than a legal point of view. The idea that an EPC was valid at the time you give it to somebody so if the person never leaves it never expires is just wrong. Effectively you are saying a tenant who lives in the same property for 20 years never needs a new EPC, even when new shorthold agreements are signed each year and the EPC itself has a life of 10 years. It's just wrong and the lawyer has confirmed it's wrong.

                          Comment


                            #28
                            Originally posted by Worriednow View Post
                            Effectively you are saying a tenant who lives in the same property for 20 years never needs a new EPC, even when new shorthold agreements are signed each year and the EPC itself has a life of 10 years. It's just wrong and the lawyer has confirmed it's wrong.
                            Not "effectively", I am saying exactly that.

                            And, while it's not particularly important, I'm arguing from a very (English) legal point of view, which is that the wording of the legislation is what matters, not what people think it says or believe is the intent.

                            Any lawyer who confirms that is wrong has to wonder why Form N5B asks for copies of all of the tenancy agreements and gas safety certificates relating to a possession claim but only allows one EPC copy to be recorded.
                            It's described as "a valid energy performance certificate given, free of charge, to the Defendant?"
                            And you attach "a copy of the energy performance certificate."

                            It doesn't matter in your case, because you don't know if your tenant was given an EPC when the tenancy began, but it's helpful to other people that they're given the right information.
                            Unless the law changes or a court decides that the law means something else, a landlord has to give a tenant a valid EPC once at some point in the tenancy before they serve a section 21 notice.
                            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


                              #29
                              https://www.bailii.org/ew/cases/EWCA/Civ/2021/936.html
                              looking at this case:

                              "The Landlords contend that this requirement did not apply because the Tenant's tenancy of the Flat was not "an assured shorthold tenancy of a dwelling-house in England granted on or after 1st October 2015" within regulation 1(3) of the 2015 Regulations. (Although the Landlords also rely upon regulation 1(4) of the 2015 Regulations, this does not seem to me to add anything to the argument.)"


                              Analysis

                              "I agree with HHJ Simpkiss that the Landlords are correct. My reasons are as follows.
                              The starting point is that, by virtue of section 5(2) and (3)(b) of the 1988 Act, the Tenant's statutory periodic tenancy of the Flat is deemed to have been granted on 19 March 2009. Thereafter it continued from month to month (because rent was payable monthly under the fixed term tenancy): section 5(3)(d). Thus it was not granted after 1 October 2015, let alone after 1 October 2018. This is common ground."

                              This does NOT apply in my case as the tenant was not on a statutory periodic tenancy but on an assured shorthold tenancy year to year...

                              Comment


                                #30
                                "Unless the law changes or a court decides that the law means something else, a landlord has to give a tenant a valid EPC once at some point in the tenancy before they serve a section 21 notice."

                                That's just it the EPC was simply not valid at any point from 2020 - 2021 during the latest assured shorthold tenancy. It was not a statutory periodic tenancy. In other words the tenancy didn't expire in 2020 and just roll on automatically. A new assured shorthold tenancy was signed. So the tenant wasn't shown a EPC when they signed (renewed) and they couldn't have been because it had already expired.

                                Comment

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