This is a Joke – Judges rule EPC served?

by Readers Question

15:54 PM, 18th August 2020
About 2 months ago

This is a Joke – Judges rule EPC served?

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This is a Joke – Judges rule EPC served?

I have severed a section 21 on a tenant for a pre 2015 AST. The EPC was sent to the tenant 18 months prior but not signed for. However, the tenant denies receiving the EPC.

Two district Judges have independently determined on probability the EPC was severed and issued a possession order. The tenant’s solicitor has requested another appeal. This is a joke.

I thought there was a high court ruling that it can be simply corrected by serving before the section 21 in any event, but I can’t find anything on this.

Can anyone point me in the right direction, so we can stop arguing about semantics and get this done?

Many thanks

Michael


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michaelwgroves

15:03 PM, 19th August 2020
About 2 months ago

I now have a bit more information on the actual defence.
Remember, the possession order was awarded on the probability that the EPC was severed before the section 21.
The appeal is based on The Energy Performance of Buildings Regulation 2012, part 2, Regulation 6(5) "The relevant person must ensure that a valid energy performance certificate has been given free of charge to the person who ultimately becomes the buyer or tenant"
Their interpretation is; 'you must ensure it is given'.
My interpretation is; 'you must ensure it is given free of charge'.
Whilst the gas has similarities, it's not the same. Is there any cases that have dealt with EPC proof of service?

Giles Peaker

18:17 PM, 19th August 2020
About 2 months ago

Reply to the comment left by michaelwgroves at 19/08/2020 - 15:03
There are no known cases on EPCs yet. The requirement is that the tenant must be given the EPC prior to any s.21 notice being served. ('Free of charge' doesn't change anything, just that you can't charge.)

It is not the same as Gas Safety Records as the requirement is based on the Energy Performance Regulations, not the Gas Safety Regulations.

But this is all separate from evidencing that the EPC was provided to the tenant.

Giles Peaker

18:25 PM, 19th August 2020
About 2 months ago

Reply to the comment left by Denise G at 19/08/2020 - 13:15Hi Denise
I'm afraid that won't work. In particular, the How to Rent Guide has to be to either given to the tenant in hard copy, or a pdf copy by email - but only if the tenant has expressly agreed that their email can be used for service of notices etc.
Doing it your way means, I'm afraid, that you haven't met the requirements of regulation 3 of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. The tenant could well argue that any section 21 notice is invalid, unless you have subsequently given them a hard copy of the Guide.
I would also not be certain that 'giving them access to a place to view documents' would stand up as 'providing' the documents.

Denise G

21:39 PM, 19th August 2020
About 2 months ago

Reply to the comment left by Giles Peaker at 19/08/2020 - 18:25Giles I'm not sure you quite understood - all of our tenants were given hard copies of all the documents required at the commencement of their tenancy. They were all handed over in an actual real A4 ring binder folder with their keys, so I'm pretty sure I have met the requirements of Regulation 3 of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.
The Right to Rent booklet wasn't even a thing when 3 of our 4 tenants moved in prior to 2015 - but the 4th was given his hard copy along with the hard copies of his TA and Inventory and DPS documents etc., to keep in his folder provided for the purpose.
In fact now all of our tenants have access to a copy of the Guide - even those for whom it was not legally required.
I am simply using Dropbox to pass on and store electronic copies of the annual Gas Safety Certificates etc, for ease of reference as each crops up. All documents are also sent by e-mail attachment (with tenant's agreement and consent), or in some instances Tenant Copies are left at the property by the Inspector.
I of course, have no control over whether those additional documents ever make it into the Tenancy Folders I provided, or that those I put in myself at the commencement of the tenancy actually stay there. Nor can I prove that the tenants ever had them should they decide to deny that - BUT I can now prove that they signed my form confirming they had them, because I keep that with my own records and I can also prove, using my own email records, that they have been given access to a DropBox folder specific to their property - because they have all replied to my e-mail as requested to confirm both that they received the link and that they can access the folder.
It's my understanding that my ICO licence covers me having, holding and using their data for the purpose of communicating with them about their tenancies – hence, for the avoidance of doubt, I have include a scan of that too in each of their Dropbox folders.

Giles Peaker

22:10 PM, 19th August 2020
About 2 months ago

Reply to the comment left by Denise G at 19/08/2020 - 21:39
OK, you hadn't made that clear.

Giving the booklet not a requirement for any pre October 2015 tenancies, but would be on any post October 2015 renewal tenancy.

I would still be cautious about relying on the dropbox link as meaning documents had been 'provided' to the tenant, even if you have a confirmation from them that they have accessed the folder. This is a grey area and may or may not hold up in court.

Denise G

23:22 PM, 19th August 2020
About 2 months ago

Reply to the comment left by Giles Peaker at 19/08/2020 - 22:10So what hadn't I made clear in my original post, when I stated "I reminded tenants that they have been given all of this information before, for them to file in the actual folder we give all new tenants at the start of their tenancies, but said I hoped this new way of keeping everything together would be easier and more convenient for us both."?

I am aware that the Right to Rent booklet did not NEED to be given to any tenants whose tenancy commenced prior to October 2015 (so that's 3 of our 4), but as I said ours now all have it available to them to refer to (or to ignore, if they chose to do so), since it's included in the Dropbox folder
As of now, our tenants have been provided with all of the information I am aware that they should have, in 2 formats - one of which is evidenced by my copies of e-mails sent and received, while the other (the original hard copies they have in their possession) relies on my securing a signature confirming they have been provided with everything listed on my form. What more should I (or could I) be doing?
Perhaps you could share how you evidence (so that it will stand up in court) that your own tenants have been 'provided' with all of the prescribed information?

Giles Peaker

23:51 PM, 19th August 2020
About 2 months ago

Reply to the comment left by Denise G at 19/08/2020 - 23:22
I don't have tenants, I am a lawyer.

I have to say that if you re providing all this to tenants in hard copy, then the dropbox backup route is legally neither here nor there. You can't confidently rely on it as evidence that the tenants have been provided with the required documents. So, it is a certainly good thing to do, but doesn't add any certainty to your legal position when it comes to the requirements for a s.21.

Getting the tenants to sign a handover form on the original file and contents list would do, though.

michaelwgroves

9:18 AM, 20th August 2020
About 2 months ago

Reply to the comment left by Giles Peaker at 19/08/2020 - 18:17
Does the judge have any discretion, can he decide on probability it's likely the EPC was served (as he did previously). Or is it black and white, no hard evidence means it has not been served?

Giles Peaker

12:09 PM, 20th August 2020
About 2 months ago

Reply to the comment left by michaelwgroves at 20/08/2020 - 09:18
That is exactly the kind of issue of dispute of facts that Judges decide - hear the evidence from both sides, then decide on the balance of probabilities what happened.

Hamish McBloggs

11:24 AM, 26th August 2020
About 2 months ago

Reply to the comment left by Denise G at 19/08/2020 - 13:15
I use box.com. rather than dropbox.

When communication has become difficult I have myself filmed posting documents and uploading the film to the (GDPR compliant) cloud. I cannot change the date and time of the upload and if downloaded, the date and time of the file is will be a few minutes before the upload date and time.

Perhaps we should all livestream to the magisterium where the Dark Lords can chair the signing ceremony and witness/record the correct exchange of the correct documents or a posting of a witness statement.

A film (cert U) that can be recalled automatically by a court as evidence if the LL/tenant relationship has broken down.

Or maybe if the Dark Lords are incapable when it comes to modern technology, perhaps a framework allied to the DPS or similar where all documents and agreements are stored in a manner that is admissible evidence.

This system could have contexturaly appropriate checklists that must be completed with documents uploaded before an agreement can be considered complete. All parties must acknowledge everything or no keys and reasonable, automatic disincentives for either party to muck the other about.

The service could calculate the value of the deposit so we're not screwed by a rounding error.

The service itself would be guardians of the checklists and curators of documents but would not be able to see the documents. These are private between the LL & tenant.

The service can 'autopopulate' with generics such as How to Rent guides to ensure these cannot be missed or considered out of date.

The documents are automatically requested and admissible as evidence as part of any dispute thus entirely eliminating this stupity because they must be asutomatically correct.

Because the checklists and generic docs are updated by the relevant Gvt depts they can never be out of date.

The service could even send reminders. E.g. Gas safety is due to the landlord or rent payment reminders to the tenant.

The service could provide a structure to correctly end a tenancy.

The landlord could keep a rent book there. Again a formal document with agreed structure admissible as evidence.

If communicating with a tenant/landlord is 'difficult' (they go off grid) then the service could objectively assess and send out reminders. It could also suggest what the next steps might be if rent isn't paid or a gas safety check is missed.

It could automatically and correctly engage bailiffs if warnings have been ignored and relevant checks made to make sure the tenant isn't in a coma in a hospital through no fault of their own.

Tenants who abscond leaving a landlord without possession could have their tenancies automatically teminated.

It would sort 80% (made up Pareto statistic) of small/private landlord disputes without a Dark Lord even having to powder a wig.

It would reduce the pressure on the Courts, speed up the process and reduce costs.

etc.

Just thinking

Hamish Orwellian McBloggs

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