RESIDENTIAL POSSESSION CLAIMS A CAUTIONARY TALE

Landlords familiar with recovering possession of their • An Energy Performance Certificate and a Gas properties will be aware that the most common, and Safety Certificate must be provided to the tenant certain, route to follow is by serving a notice pursuant to before the tenancy starts; and Section 21 of the . Broadly speaking, • A “How to Rent” must have been provided to the tenant. this process allows a landlord to recover possession of their property from a tenant, upon giving the tenant no If a landlord wants to recover possession through the less than two months’ notice, without needing to give Section 21 procedure, then notice can only be served a reason and without needing to prove an element of if the landlord has complied with these requirements. tenant default. If the notice expires and the tenant is Furthermore, a notice cannot be served in retaliation, still in possession, the landlord can apply to the courts for example because the tenant has raised a legitimate for a possession order. complaint about repairs to their home.It must also be noted that notice cannot be given within the first four The Section 21 procedure is the subject of continued months of the beginning of the AST. That notice must debate. Landlords often view the procedure for evicting be in a prescribed format, known as Form 6A. a tenant, particularly if the courts are involved, as unnecessarily complicated and costly. Others take the For ASTs which began before 1 October 2015, the old view that the protection given to tenants is not enough rules apply until 30 September 2018. That is, a landlord or even that the procedure should be abolished entirely. only needs to give at least two months’ notice of a specified date for possession, which cannot be earlier There are no plans to abolish the procedure but the than the date on which the fixed term is due to expire. regulations governing it have changed in recent years, That notice does not need to be in any particular format. most notably as a consequence of the Deregulation Act Provided that the landlord has protected the deposit, no 2015 coming into effect from 1 October 2015. The last further regulations or restrictions apply. three years have been a transitional period, allowing landlords and tenants to become familiar with the new regulations. However, the transitional period ends shortly.

Current position The main change to be aware of affects any assured shorthold tenancy (AST) which started on or after 1 October 2015. In this case, a landlord has an obligation to provide the following documentation to a tenant: • If a deposit has been taken it must have been protected in compliance with the Tenancy Deposit Scheme and details of that scheme and other “prescribed information” must be provided within 30 days of receipt; From 1 October 2018 Closing comments Almost every AST that exists on or after 1 October 2018, Landlords may well feel that the ever changing irrespective of when it was entered into, will be governed regulations are designed to catch them out. Conversely, by the above regulations. This will mean that Form 6A tenants are likely to view the changes over recent years will be the only form of notice which is acceptable. as positive and aimed at protecting their rights. Either way, I cannot overstate the importance for landlords What are the consequences of failing to comply with and agents of keeping up to date with the changes and the regulations? getting good advice from the outset. In particular: In short, a landlord who fails to comply with the above regulations cannot serve a valid Section 21 notice until • Ensure that the relevant certificates are provided to the conditions have been met. This could mean that a the tenant before the AST starts. Ideally, obtain a landlord, who is not aware of the regulations, gets all the signed receipt. way to court only to have the case thrown out because • Ensure that any deposit taken is protected on time of a failure to comply. and the prescribed information sent to the tenant. • Ensure that the “How to Rent” guide is provided to In some cases, if there is non-compliance, the breach the tenant. may be capable of being remedied. For example, a • Make sure that you serve the appropriate landlord who fails to protect a tenant’s deposit can either Section 21 notice at the appropriate time. return it to the tenant or protect it. Provided that one of these is done before the Section 21 notice has been served then it will be valid, although the landlord may face a claim for compensation arising from the failure.

However, what happens if the landlord does not provide, say, a Gas Safety Certificate before the AST starts?

This happened in a case which was heard earlier this year (Caridon Property Ltd v Monty Shooltz). The landlord had not provided a Gas Safety Certificate to their tenant until some 11 months after the AST began. The landlord then served a Section 21 notice and started court proceedings for a possession order. The judge initially dismissed the landlord’s claim on the basis that, on a strict interpretation of the regulations, the requirement to serve a Gas Safety Certificate before the AST began had not been met. The landlord appealed and the case came before HHJ Luba QC, widely regarded as a pre-eminent housing law specialist. HHJ Luba QC dismissed the appeal, finding: “Once opportunity [to serve the certificate] has been missed, there is in my judgment no sense in which it can be rectified.”

It is understood that the landlord has since withdrawn their case so it will not be the subject of further appeal. Whilst this decision is not generally binding, district judges in the county courts, many of whom hear possession cases on a weekly basis, will find it hard to dissent from HHJ Luba’s decision. The position is likely to remain like this until such time as Parliament legislates or a higher court determines otherwise and creates a binding . Therefore, as things stand currently, a landlord may well find it impossible to recover possession through the Section 21 route if a Gas Safety Certificate has not been provided before an Linden Talbot - Solicitor AST begins. Commercial Litigation 01202 338565 [email protected]