Nearly Legal Trecarrel

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. [48] [49] [50] 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. [50] 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] [32] 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. [1] [2] 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. [2] 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] [32] [36] The judgment of the Court of Appeal (on a 2:1 par­ti­al decisi­on) sta­ted the following.