EPC obtained but not provided to tenants – Is S21 valid?

EPC obtained but not provided to tenants – Is S21 valid?

10:15 AM, 17th February 2023, About A year ago 22

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In September 2022 I served a S21 on my tenants giving 4 months Notice. They have approached the Council as they require assistance getting rehoused and have been told that the S21 is invalid because the EPC expired in 2020 and they weren’t issued with a copy of a new one.

The tenancy began in 2016 and has since become periodic, and I had a new EPC completed in 2022 prior to serving notice but failed to provide the tenants with a copy.

My understanding was that providing them with an EPC during the tenancy was not required – am I wrong and is the S21 therefore invalid?

All the documents required to be provided before the tenancy commenced were provided.

Many thanks

Colin


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Comments

SimonR

10:21 AM, 17th February 2023, About A year ago

You do not need to provided a new EPC even when the old one has expired whilst a tenant is in situ, an EPC would only have been needed if you are going to advertise the property or work was done to bring it in line with the minimum E requirement

DPT

11:23 AM, 17th February 2023, About A year ago

I would agree that the legislation seems only to require that a valid certificate be served on the tenant at some point prior to the service of the s21 notice in order for the notice to be valid. This was achieved in 2016. I wouldn't be surprised if the tenants defence resulted in a protracted court case though with an unpredictable judgement.

Seething Landlord

11:35 AM, 17th February 2023, About A year ago

Whether you need to to renew an EPC when it expires during the course of a tenancy is a bit of a grey area but as far as I am aware there is no requirement to provide a copy to a tenant other than prior to the commencement of the tenancy. The reason why you might need to renew it is that you are not permitted to continue to let a property which does not meet the required EPC rating and without a current certificate you cannot be sure that it still does as the system changes from time to time.
As the council are involved they will almost certainly tell the tenant to wait until evicted by the bailiffs so your possession claim will have to go to court where you will find out the relevance of the EPC issue.
I would be inclined to give the tenant a copy of the new certificate now to be on the safe side.

colinwri

12:48 PM, 17th February 2023, About A year ago

I think, for the avoidance of any doubt, I will issue a new S21 giving two months notice now that I have provided a current EPC to the tenant.
Hopefully that will avoid any need for a hearing and potential unpredictable judgement.

Thank you all for your input.

Smiffy

15:51 PM, 17th February 2023, About A year ago

This is all rather stupid, as EPC's are all in the public domain, and any individual can visit the GOV website and search for them anyway.
As they are not private, there should be no requirement to produce copies at any point.
We just need one Judge to recognise this and it'll "save a thousand trees"!
https://www.gov.uk/find-energy-certificate

David Houghton

18:49 PM, 17th February 2023, About A year ago

Form N5b is your point of reference. You need to be able to give the correct answer to each and every question. An EPC must be served before the s21. Serve and reissue is the correct course of action

Henry Malone

18:58 PM, 17th February 2023, About A year ago

COLIN
As far as I have read a EPC is good for 10 years .
So if the tenant has had 1 done in 2016 it still has 4 years to go

Just curios to know if the 2nd EPC info differs much from the 1st one

Henry Malone

18:58 PM, 17th February 2023, About A year ago

Reply to the comment left by David Houghton at 17/02/2023 - 18:49COLIN
As far as I have read a EPC is good for 10 years .
So if the tenant has had 1 done in 2016 it still has 4 years to go
Just curios to know if the 2nd EPC info differs much from the 1st one

colinwri

19:04 PM, 17th February 2023, About A year ago

Reply to the comment left by Henry Malone at 17/02/2023 - 18:58
The EPC given in 2016 was actually completed in 2010 so expired in 2020. I had a new one done in 2022 before s21 was served because the intention is to put the property up for sale. I haven’t compared them but they are both rated D.
The email to my renant from the council is as follows:

Dear Gemma, I have been asked to assess the validity of your notice. I do not consider that it is valid as your Energy Performance Certificate has expired in 2020. Any notice served without a current certificate is not valid.

Your landlord would need to serve you with a current certificate and then serve you with a new notice.

I have attached a link to the Shelter webpage that explains the legislation. Please see section 3 of the guide.

If you have been supplied with a new EPC please send it to me and let me know when you received it.

CMS

23:44 PM, 17th February 2023, About A year ago

Hi, my understanding is that the EPC only needs to be valid at the time you served it which was presumably prior to the AST originally being granted.

If, as in your situation, the EPC expired during the tenancy then there is no need for you as the landlord to provide a new valid EPC in order for your section 21 to be valid.

So far as the regulations go I cannot see anything that suggests the section 21 notice is invalid because the EPC has expired HOWEVER if the tenant puts this up as a defence I guess it is possible that a Judge on the day may take a differing view regardless of how it appears to me the regulations are worded. Good luck, Charles

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