On June 26, 2018, the Department of Housing, Municipalities and Local Government released a new version of the guide entitled “How to. Rent A guide for current and potential tenants in the private rental sector in England”. With its subtitle different from that required by the 2015 regulation, it is not clear whether this version has any legal effect. A new version of the guide with corrected subtitles was published on July 9, 2018.    It is also unclear whether the guidance issued by the Department of Housing, Municipalities and Local Government since its name change in January 2018 is valid, as the 2015 regulations specifically refer to the Department of Municipalities and Local Government.  If a section 21 notice is invalid because the landlord has failed to comply with certain legal requirements, the landlord must first comply with all legal requirements and then give the tenant a new section 21 notice to regain ownership. (6) Despite paragraph (5), every landlord shall ensure that subsection 2(2) of the Regulation has removed the 28-day time limit from paragraph 36(6)(a), but the effect, if clearly read, is not that the requirement in paragraph 36(6)(b) of the Regulation has been waived. I am not convinced that not conducting the next security check within 12 months of the last one means that the landlord cannot comply with paragraph (6)(a) as a prescribed requirement if they provide the tenant with a copy of the protocol after the review. As Mr. Bates, paragraph 3(a) is not in itself a prescribed requirement and if the words ‘so examined‘ in paragraph 3(a) are interpreted as claimed by Mr Cherry, paragraph 3© would not require the landlord to make and keep a copy of a late inspection, and section 36(5) of the Regulation would not be practicable.
That seems absurd to me. The landlord must provide the tenant with a copy of the current Gas Safety Certificate and a valid Energy Performance Certificate (EPC) prior to termination. The tenant has a defence in court if the landlord has not provided both certificates at the time of termination. If the landlord has backed up the security deposit within 30 days of receiving it, but has not provided the tenant with the required information, the landlord must provide the correct information before serving a notice under section 21. I find myself in the strange position of considering the lower court‘s decision to be erroneous, but also of disagreeing with the Court of Appeal. I agree with Moylan LJ (and HHJ Jan Luba, QC) that it is difficult to interpret section 2(2) of the Regulations as applying to the obligation under paragraph 36(6)(b) of the Regulations. I was in favour of the ‘ambulatory‘ interpretation of Article 21A as the one which, in view of all the relevant parliamentary documents, seems to be the one that was intended. The HA 2004 point is an interesting counter-argument, but I don‘t find it as convincing as Moylan LJ (is he sure to rely on the provisions of another law that is notoriously a drawing dog breakfast as an aid to interpretation?) The tenant attempted to confirm the following judgment for the same reasons.
There was also an issue as to whether a subsequent GSR had been provided to the tenant before the section 21 notice was issued, which I will mention below. The Housing Act 2004 introduced requirements on how a landlord must deal with a rent deposit related to the tenancy. A landlord can only demand payment of money as a deposit. [xix] No notice may be given under section 21 while property other than money is held as a deposit. [xx]  Under the Energy Performance of Buildings Regulations 2012 (England and Wales), landlords must provide the tenant with a copy of a valid Energy Performance Certificate (EPC) before the section 21 notice is served. There is no time limit for this. As we noted in our report on the first appeal in this case, this is the impact of a landlord not providing a valid gas safety record to a tenant before the tenant moves into the property. Does this mean, as was found in the first appeal and in Caridon Property Ltd v. Monty Shooltz, that the landlord can never serve a section 21 notice, even if a valid gasoline safety certificate is subsequently submitted? As a final point to complain, will someone (especially the Court of Appeal) not think of those of us who are trying to create organizational charts on the validity of section 21? How the hell can I handle it. The Rental Fees Act, 2019 introduced a prohibition for landlords and rental agents to charge tenants, someone acting on behalf of the tenant or the tenant‘s guarantor most types of fees related to their tenancy, a cap on the amount of a security deposit allowed, and rules for processing the security deposit. It came into effect for new leases on June 1, 2019[liii] and existing leases one year later. [liv] When renewing a tenancy, the landlord must always ensure that the deposit remains protected by an approved system.
[Edited by NL to avoid any obvious suggestions about one person – Amy pointed out that new reasons for ownership in the white paper on tenant reform could allow landlords to escape such an irrecoverable mistake.] (I wonder if there will be an appetite on the LL side to take these cases to the COA if they know that section 21 should be short-lived?) I think this means that in order to serve a notice under section 21, the landlord must provide (albeit belatedly) the GSR covering the period of commencement of the lease and, if beyond the 12-month validity of that GSR, at least the current GSR, in order to be able to serve a termination under section 21. However, this does not mean that subsection 2(2) of the Regulations had no influence on the timing of the application under paragraph 36(6)(b). The wording of the EPC is different. I do not think the same problem arises. In England and Wales, a notice under section 21, also known as a notice of repossession under section 21 or eviction notice under section 21, is the notice that a landlord must give to his tenant in order to begin the process of taking possession of a property leased under a short-term secured lease without providing a reason for taking possession of it.   The expiry of a termination in accordance with § 21 does not terminate a tenancy. Since 23 November 2016, no notification can be made in accordance with § 21 if the owner is not registered or if a self-managed owner is not licensed.  When I think about it, this means that a failure to provide an RSP to the tenant at the times specified in Reg 36(6)(a) and 36(6)(b) can be remedied by a late provision of the GSR. However, this does not mean that, in particular, the fact that a valid GSR is not actually in place at the beginning of the lease can be corrected by a subsequent GSR.
Failure to apply the requirement to provide the tenant with a GSR prior to the commencement of occupancy – Regulation 36(6)(b) – so that it can be provided at a later date does not mean that a subsequent inspection and gas safety record meets this requirement, but does mean that the gas safety record from the beginning of the lease may be submitted later than “before the lessee referred”. The result may “turn the tenancy into something that the parties did not provide, but the remedy is to comply with subsection 2(2) of the Regulations and obtain the appropriate documents before the tenant moves in.” There are various penalties for failure to protect the deposit and failure to provide all required information. A landlord is prohibited from giving notice under section 21 for six months if he receives a notice of improvement under section 11 or 12 of the Risks Act 2004 or a notice under section 40(7) of the 2004 Act after taking emergency measures from the local housing authority. [xxxi]   The judgment of the Court of Appeal (on a 2:1 partial decision) stated the following.