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New section 21 requirement: Energy performance certificates

From the 1st October, the use of section 21 notices for new assured shorthold tenancies in England will be subject to additional requirements (following new section 21A added by the Deregulation Act).

Landlords will be required to have complied with EPC and gas safety regulations in order to be able to serve a valid notice. (see a another post for gas safety requirements).

In relation to EPC, the pre-requisite to serving a valid s.21 notice is (defined in SI 2015/1646):

2.—(1) Subject to paragraph (2), the requirements prescribed for the purpose of section 21A of the Act are the requirements contained in—

(a) regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012 (requirement to provide an energy performance certificate to a tenant or buyer free of charge);

The requirement contained in regulation 6(5) is:

(5) 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.

Therefore, the pre-requisite appears to simply be to provide a copy of a valid energy performance certificate in order to be able to serve a valid s.21 notice.

There is no mention of any deadline although the wording “the person who ultimately becomes tenant” might be open to interpretation.

In any case, landlords must already comply with the full EPC regulations, including regulation 6(2), which requires that a copy of the EPC be made available to all prospective tenants. As such, in principle they should already comply with the strictest interpretation of this new pre-requisite.

It will be important to have evidence that the copy of the EPC was given, e.g. by requiring a signed receipt.

Once a copy of the EPC has been given to the tenant, there should be no need to give a new copy every time a new tenancy is created as, in any case, “the person who ultimately becomes the buyer or tenant” has already got it.

What about HMOs?

HMO landlords don’t normally provide copies of the EPC certificate to their tenants because the EPC regulations are defined as applying to a building being let, not part of a building.

However, the new pre-requisite above is specifically to comply with regulation 6(5) only, and nothing more. As such it would seem that the situation for HMO will be the same as for all other ASTs: Landlords will have to provide a copy of a valid EPC in order to be able to serve a valid notice.

At this time this is just one interpretation and the situation may be clarified in court in the months and years to come. Nevertheless it seems prudent to indeed always give a copy of the EPC.