Minister v Hathaway – Landlord and Tenant Dispute

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The appellant tenant had an assured shorthold tenancy of a property pursuant to a 1-year tenancy granted on 19 March 2008. Since the expiry of the AST, the tenant had occupied the property by virtue of a statutory periodic tenancy pursuant to s.5(2) the Housing Act 1988.

On 6 December 2018, the landlord served the tenant with a s21 notice. Prior to serving the s21 notice, the landlord had not served an EPC. The claim was dismissed at first instance, but on appeal HHJ Simpkiss concluded that service of an EPC was not required and that the s.21 notice was valid and granted the landlords possession. The tenant appealed, arguing that that section 41(3) of the Deregulation Act 2015 provides that section 38 of the 2015 Act inserting section 21A of the 1988 Act applies to any assured shorthold tenancy which is in existence on 1 October 2018.

Judgement

The Court of Appeal dismissed the appeal. Sections 38 and 39 of the 2015 Act inserted the new s.21A and s.21B into the 1988 Act. Those sections provide that a s.21 notice cannot be given at a time when the landlord is in breach of a prescribed requirement (such as the energy performance of dwelling houses).

The parts of s.38 and s.39 of the 2015 Act which introduce s.21A and s.21B came into force on 1 July 2015. That enabled the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 to come into force on 1 October 2015. Section 41 of the 2015 Act, which governs the application of ss.33 to 40, also came into force on 1 October 2015. Section 41 stipulates that ss.38-39, and the prescribed requirements, only apply to assured shorthold tenancies granted on or after 1 October 2015. Accordingly, by virtue of section 41(1) and (2), sections 38 and 39 only apply to assured shorthold tenancies granted on or after 1 October 2015.

However, section 38 (but not s.39) states that it also applies to any assured shorthold tenancy which was in existence on 1 October 2018. However, Regulation 1(3) of the 2015 Regulations provides that those requirements only apply to assured shorthold tenancies granted on or after 1 October 2015. The Court of Appeal held that as the Secretary of State has not exercised his power to extend this provision to any tenancy in existence on 1 October 2018, the requirements in s.21A and s.21B to provide prescribed information to the tenant, including information about energy performance, only apply to assured shorthold tenancies in existence on or after 1 October 2015. In this case the tenant’s tenancy predated that by six years.

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