2 May 2018

Section 21 Notice Validity Alert

Any landlord or agent worth their salt will be only too aware of potential pitfalls when serving Section 21 notices to end Assured Shorthold Tenancies (ASTs) in a post-Deregulation Act age.

A recent appeal, Caridon Property Limited v Monty Shooltz (heard by HHJ Jan Luba QC at Central London County Court), has muddied these murky waters even further and it appears that a valid Section 21 notice may not be served if a tenant is not provided with a valid Gas Safety Certificate (GSC) before he or she moves in at the start of an AST granted after 1 October 2015 (when the Deregulation Act came into force).

Legal Requirements

Section 21A of the Housing Act 1988 (as amended by the Deregulation Act 2015) states that a Section 21 notice cannot validly be served in relation to tenancies granted after 1st October 2015 if the landlord is in breach of a "prescribed requirement". 

Amongst other things outside the scope of this note, these prescribed requirements specifically state that a landlord should provide a copy of a valid GSC to any new tenant of the premises before that tenant takes up occupation. 

Facts of the Case

The landlord did not provide the tenant with a copy of the GSC until 11 months into the tenancy, i.e. just before he served a Section 21 notice.

On appeal the judge decided that the Section 21 notice was invalid because the GSC had been served late and that this delay could not be perfected.

What does this mean?

Although this judgment is not binding, until it is appealed, or the government reconsider the wording of the relevant legislation, landlords are unlikely to be able to serve valid Section 21 notices if they have failed to give new tenants a valid GSC at the start of a new Deregulation Act tenancy. 

Since the requirements for a valid Energy Performance Certificate or 'How to Rent' booklet are slightly different it may be possible to argue that this ruling will not apply to the late service of these documents. However, it would clearly be good practice to serve all of the necessary documentation at the same time to avoid this argument being raised by the tenant later on.

What you need to do

We recommend that Landlords and Agents take the following action when dealing with a new AST:

  1. Make sure that tenant/s are provided with a GSC before the start of the tenancy and before the tenant moves in.
  2. Make a note of when this was done and ask the tenant/s to sign a receipt confirming that this information has been received.
  3. Make sure that all staff who deal with lettings are aware of these requirements and that it is added to pre-tenancy checklists.
  4. If the GSC has not been served in line with the requirements then make sure a valid GSC is served before any replacement tenancy is entered into, or before a statutory periodic tenancy begins at the end of the fixed term.
  5. If you have any questions about the information contained in this blog, or about residential property litigation matters in general, then please do not hesitate to contact Forsters' property litigation team.

Sarah is an associate in our Property Litigation team.

"We benefit from a partner-level service but always with really strong junior members of the team to do the heavy lifting. They are consistently one of the best firms we use."
Chambers UK, 2017
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