7 October 2021
RED alert - Autumn 2021 – 7 of 7 Insights
There have been a number of recent decisions relating to residential property over the summer concerning the ability to obtain possession.
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.
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.
This case concerned a situation where a residential property 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 and no replacement tenancy agreement is 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.
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 returned to pre-pandemic levels with a minimum notice period of 2 months with effect from 1 October 2021. The most common notices/grounds are summarised below:
The government has also updated the prescribed forms of notice and it is worth being aware that they have retained the power to re-introduce longer notice periods until 25 March 2022 should circumstances change.
Notice periods have been frequently changing so we recommend you obtain legal advice if you are considering serving a statutory notice.
by Multiple authors
by Saleem Fazal
by Emma Archer
by multiple authors
by multiple authors