Author
Stephen Burke

Stephen Burke

Senior associate

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Author
Stephen Burke

Stephen Burke

Senior associate

Read More

9 September 2021

Residential & rural - September 2021 – 1 of 3 Insights

Residential tenancies and possession: Case Round-up

There have been a number of court decisions relating to residential property over the summer concerning the ability of landlords to obtain possession of their properties.

Minister v Hathaway and another [2021] EWCA Civ 936

This case concerned a dispute between a landlord and tenant of a residential property in Bexhill on Sea.  The County Court had previously decided that a notice pursuant to section 21 of the Housing Act 1988 (Section 21 Notice) was invalid because an energy performance certificate (EPC) had not been served on the tenant.  This was despite the fact that the tenancy commenced in 2008, prior to 1 October 2015.  That date was significant because it was when, amongst other things, the requirements to serve an EPC as a prerequisite to obtaining possession of residential property were widely regarded as being retrospectively applied to all assured shorthold tenancies.  There had been a lack of clarity over whether this did apply retrospectively and this decision was appealed by the landlord.

The Court of Appeal concluded that regulation 2 of The Assured Shorthold Tenancy Notices and Prescribed Information (England) Regulations 2015 does not apply to tenancies granted before 1 October 2015.  This means that landlords with properties let under such tenancies do not have to serve an EPC or provide the tenant with a gas safety certificate in order to be able to rely upon a Section 21 Notice.

This decision will be welcome news to landlords of assured shorthold tenancies which commenced prior to 1 October 2015, although such tenancies are likely to be limited in number at this stage.

Round-up

Landlords of tenancies granted before 1 October 2015 do not need to provide an EPC or gas safety certificate as a prerequisite to obtaining possession using a Section 21 Notice.  Tenancies commencing on or after 1 October 2015 do require these.

Sturgiss & Gupta v Boddy & Ors [2021] 7 WLUK 298

This case concerned a residential property that was let to a number of tenants as a house share.  Whilst the original tenancy agreement was with the original tenants, various individuals had been replaced at different times throughout the tenancy.  This is often organised by the tenants themselves, with no replacement tenancy agreement being entered into.

Whilst common, these arrangements can cause difficulties when it comes to the tenancy deposit.

In this case, the landlord had not protected the tenants' deposit as there was no requirement to do so when the original tenancy agreement commenced in 2004.  After some of the tenants had moved out, they issued proceedings against the landlord seeking a statutory penalty of between 1-3 x the deposit.  They argued that there was a surrender of the existing tenancy and grant of a new tenancy each time one of the tenants changed.

Whilst it was held at first instance that the tenancies were actually licences, this was overturned on appeal.  Furthermore, it was held that each change in tenant does amount to a surrender and re-grant of the tenancy.  As a consequence, the tenants were awarded 1 x their deposit as a result of the landlord's failure to protect the deposit.

Round-up

Landlords should exercise great care when dealing with a change of tenants within a house or flat share to avoid falling foul of statutory penalties relating to deposits.

Changes to notice periods

The notice periods required to obtain possession of residential property have been reduced to 4 months with effect from 1 June 2021.  The most common notices/grounds are summarised below:

Table

The Government has also confirmed that these notice periods will be in force until at least 30 September 2021. Subject to public health advice, the Government intends to reduce notice periods to pre-pandemic levels (i.e. 2 months' notice in most circumstances) from October 2021.

Round-up

Notice periods are frequently changing so we recommend you obtain legal advice if you are considering serving a statutory notice.

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