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Can Residential Landlords Regain Possession Through Serving a Section 21 Notice?

Jessica Irwin

As senior associate solicitor Jessica Irwin, in our Dispute Resolution team, explains, recent case law suggests that residential Landlords will no longer be able to regain possession through serving a section 21 notice without the early compliance of its legal obligations.

Landlords of Assured Shorthold Tenants have many responsibilities and obligations to their Tenants.  In relation to tenancies created on or after 1 October 2015, the obligations on Landlords in order to be able to terminate such tenancies using the “section 21 procedure” increased following the introduction of the Deregulation Act 2015 (‘the Act’).  The Act requires Landlords to provide their Tenants with various prescribed documents before being able to serve a Section 21 notice, including the Energy Performance Certificate, Gas Safety Certificate, and ‘How to Rent’ leaflet. (Separately the Landlord must ensure compliance with the Tenancy Deposit Scheme by registering the deposit within 30 days of receipt and providing the Tenant with prescribed information within the same time frame, but that is beyond the scope of this article).

Previously, Landlords have relied on eventual compliance by serving these documents after the Tenancy has commenced but before they want to serve a Section 21 notice if they have omitted to do so at the start of the tenancy.  There had always been a presumption that as long as the Tenant has been served with the prescribed documents prior to serving a Section 21 notice, the Landlord would be deemed to have complied with its obligations under the Act and could validly serve the notice.

However, recent County Court appeals have concluded that this presumption is wrong.  In the case of Caridon Property Limited v Monty Shooltz, the Landlord served the Gas Safety Certificate on the Tenant 11 months into the Tenancy, shortly followed by a Section 21 notice. The Judge took a strict interpretation of the relevant legislation concluding that serving the Gas Safety Certificate at the start of the tenancy is a ‘once and for all’ obligation and cannot be rectified once missed.  Accordingly the Section 21 notice was invalid and could not be relied on. The Judge went even further, suggesting that the prescribed documents should be provided to the Tenant before they had even gone into occupation.

Although this case is not binding as it is only a County Court Appeal, until the decision is appealed to the Court of Appeal or the government reconsiders the wording of the relevant legislation it is likely to be followed in subsequent possession claims.  Consequently, at least for the time being, if a Landlord has not provided the Tenant with the prescribed documentation at the start of the Tenancy they are unlikely to be able to serve and rely on a Section 21 notice to regain possession of the property.  Although the case referred to above dealt with Gas Safety Certificates, it is likely that the principle will apply to EPCs and the ‘How to Rent’ leaflet.

To avoid being deprived of possession through the Section 21 route, which is generally the easiest way to obtain possession, it would be advisable for Landlords to ensure they provide the prescribed documentation with the tenancy agreement, before the keys are handed over, and to obtain confirmation of receipt from the Tenant at the same time as getting them to sign the tenancy agreement.

For further information or legal advice, please contact Jessica Irwin or Pippa Lee.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.