Home Group Ltd v Henry. County Court at Newcastle. 21 May 2018
For post October 2015 assured shorthold tenancies section 21A means that no s.21 notice may be served when the landlord is in breach of a prescribed requirement. One of those prescribed requirements is – via s.2(1) The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015:
the requirements contained in—
(a) regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012(2) (requirement to provide an energy performance certificate to a tenant or buyer free of charge);
But there has for some time (in fact since 2015) been a bit of a question over how, if at all, the EPC requirement applied to tenants of HMOs. Indeed, I flagged it as a ‘grey area’ in the section 21 validity flowchart. The reasons for it being grey will become clear…
This was a county court appeal of a possession hearing which centred on the issue of whether an EPC was required for a tenant of an HMO.
(Sorry I’ve sat on this for a bit. It wasn’t wholly clear that it was OK to publish. My thanks to Peter Marcus – Zenith Chambers, and Alice Richardson – Trinity Chambers, for details of the case and notes of judgment.)
Mr H has an assured shorthold tenancy of a room in a house of multiple occupation, described as a “single bedroom with en suite together with shared use of the following communal facilities: kitchen, lounge and shower room”. Home Group were the landlord. In September 2017, Home Group served a section 21 notice and brought possession proceedings. Mr H defended on the basis that the s.21 was invalid as no EPC had been provided.
A possession order was made and Mr H appealed. The first instance finding that Mr H’s tenancy was not of a self contained property and was not of a building or building unit was not appealed.
Mr H argued that s.2(1) of the AST regulations (as above) referred only to reg 6(5) of The Energy Performance of Buildings (England and Wales) Regulations 2012, which states
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.
There was no reference to the rest of Reg 6. There was no express incorporation of the definitions in the rest of the 2012 Regulations. Further, the notes to form 6A – the prescribed s.21 notice – make no reference to circumstances in which an EPC would not be required. There was no reason why tenants of HMOs should be treated differently, so the 2015 AST Regs should be read accordingly.
Home Group argued that:
The requirement to provide an EPC under reg 6(5) of the 2012 Energy Regs only arose when a building was let – Reg 6(1) “Subject to regulation 8, this regulation applies where a building is to be sold or rented out.”
A building (which also includes reference to a ‘building unit’), was defined at Reg 2 “building” means a roofed construction having walls, for which energy is used to condition the indoor climate;” and ““building unit” means a section, floor or apartment within a building which is designed or altered to be used separately;”
An EPC – reg 9 – is to be prepared for ‘the building’ as the basis for assessment.
A bedsit was not a building, nor was it a building unit as it was not designed or altered to be used separately.
DCLG guidance in 2011 (on the old regs) said was not required for a room. 2017 MHLCG guidance on EPCs also stated that an EPC was not required for a room.
The 2015 AST regs did not impose an obligation on the landlord that was greater than that of the 2012 Energy Regs.
HHJ Kramer dismissed the appeal, holding:
The 2015 AST Regs did not, in themselves, impose new obligations, but referred to obligations in other regulations. So, if the obligation under Reg 6(5) only arose in the situations set out in the rest of the Energy Regs, that was also the only point it was an obligation for the purposes of the AST Regs 2015.
While there was no derogation expressly made in the 2015 AST regs for tenancies of HMOs, this would have required a new definition of EPCs to be relevant to a room, not a building or building unit.
The explanatory note to the form 6A was not in itself the law, and the notes here were misleading.
Comment
This is a county court appeal to a circuit judge, so not binding. That said, these were clearly the lines of argument on each side that we’ve been waiting for quite a while to see ruled upon. Indeed, I am a little surprised not to have heard of other cases, or indeed see a higher court appeal, on the issue.
While this has to remain technically a grey area, the next challenge, surely, is whether a room in an HMO falls under ‘building unit’ as designed or altered to be used separately, whether the MHCLG guidance on EPCs is right, and whether there is really any policy reason why a prospective HMO tenant should not be informed of the energy efficiency of the building.
Saw your twitter post on this the other day which had me scratching my head, so thanks for this, very interesting.
So in defending against an invalid s21 on the EPC issue, it is material to ascertain whether the room being rented has been altered or specially designed or is merely a room that would normally be used as a bedroom in a family home.
An occupier renting from a dodgy rent 2 rent scammer who has carved up a larger room into a couple of smaller ‘Building units’ with plasterboard in order to maximise income (ie, 90% of cases we deal with) would need an EPC to validate a s21, whereas the renter of an unaltered bedroom wouldnt?
In which case I wonder what changes would have to be made for a court to consider that a room had been altered to be used separately? A lock on the room door?
If this appeal is right, then a room in a property with shared facilities does not need an EPC, full stop.
Decision seems reasonable to me as without its own kitchen it is not “designed or altered to be used separately”.
Which is what I always thought, albeit for the wrong reason
Hi does failure to serve an epc on a pre 2015 tenancy invalidate a s21?
Your flow chart seems to say it can’t but I’m reading in shelter that it possibly can
Thanks.
If the tenancy predated Oct 2015, and there have been no subsequent ‘renewal’ tenancies after 1 Oct 2015, then no EPC is required for a s.21. I don’t think the flow chart says that, page 7 sends pre 1 Oct 2015 tenancies to page 9, skipping the EPC bit on page 8.
Thanks. That’s what I understood
But I’m coming accross a few posts that suggest otherwise One of which you have commented on a couple of months ago on property 118 where a pre 2015 has now gone to appeal due to epc. But it was because of a serving issue
Just wandering why that would happen if it wasn’t a legal requirement?
Maybe the judge wasn’t using my flowchart ;-)
Haha ok
Sounds like you are saying the judge can do as they please regardless of legal requirement. That’s scary!!!!
No, but sometimes on busy days, with complicated bits of law, they can get things wrong.
Thankyou Mr Peaker
Does this still apply if it was a pre 2015 contractual periodic tenancy from the start with no initial fixed term?
The regulations seem to state it only applies to statutory periodic tenancy ( if I understood correctly)
It applies to new tenancies granted after 1 October 2015 (including ‘replacement tenancies’) If it is the same tenancy that started before 1 Oct 2015, then the regs don’t apply.
Thankyou. Yes it was a monthly rolling tenancy right from the start so the regs don’t apply.
Great site you have… very informative
Thanx again.
I’m probably just missing the relevant provision here, or maybe the original SI has been amended, but why does the definition of ‘building’ for the purposes of Reg 6(1) and (5) include ‘building unit’?
Good question, but regs 4, 9(4)(b) and 11 would appear to be predicated on that. (Otherwise, a self contained flat would arguably not need an EPC?)
Many thanks Giles. Just seems odd that having taken the trouble to define ‘building unit’ in Reg 2 in a way which would definitely catch sc flats, it then only uses ‘building’ in Reg 6, the definition of which doesn’t seem to catch sc flats, but I take your point!
The answer is SI 2013/181 amends ‘building’ to include ‘building unit’. https://www.legislation.gov.uk/uksi/2013/181/regulation/9/made