Whilst we continue to await details of the Renters’ Reform Bill, which is expected to abolish the “no fault” eviction procedure under section 21 of the Housing Act 1988, in practice some landlords may have already lost the ability to end an Assured Shorthold Tenancy by simply giving two months’ notice.

Where the tenancy in question was granted on or after 1st October 2015 (including where an earlier tenancy has been renewed after September 2015), a s.21 notice will not be valid unless the landlord has complied with certain obligations to provide information and documents to their tenant. More specifically: providing to the tenant a copy of the appropriate version of the ‘How to Rent’ booklet, an Energy Performance Certificate and, where appropriate, a Gas Safety Record.

All these documents should of course always be provided to a new tenant before their occupation of the premises begins. There has been much discussion in recent years about whether a landlord who has omitted to supply one or more of these documents at the appropriate time can recover the right to serve a s.21 notice by sending the missing paperwork to the tenant at a later date (including, for instance, days before serving a s.21 notice). The position has recently been made somewhat clearer by the Court of Appeal Judgment in Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760. In this judgment, the Court decided that late service of a Gas Safety Record would be sufficient to enable a landlord to serve a s.21 notice, provided that the Gas Safety Record was in existence at the time when it should have been served.
Whilst this judgment allows landlords a little more leeway than many had anticipated, it leaves us with a number of scenarios in which a landlord’s ability to serve a s.21 notice is, at best, uncertain. For example, if the landlord omitted to obtain a Gas Safety Certificate before the tenant moved into the property, or if the most recent certificate at that point was over 12 months old, it is doubtful whether the landlord can ever be entitled to serve a s.21 notice. It should further be noted that the appeal in Trecarrell was decided on a majority of two to one: Lord Justice Moylan considered that a more restrictive reading of the statute should have been adopted, which would have meant a landlord’s failure to provide a copy of the Gas Safety Record to their new tenant before they moved in would permanently have barred them from serving a s.21 notice.

As this case focused heavily on the interpretation of a regulation about time limits for service of Gas Safety documents, and there is no equivalent provision in respect of EPC certificates, it also remains distinctly possible that if a landlord cannot show that an EPC certificate was served at the appropriate time, they may be permanently debarred from making use of the s.21 notice procedure. The risk of failing to serve a How to Rent booklet having the same effect appears lower, as there is no specific deadline in the regulations for this information to be provided to the tenant, but it is still possible that a Judge might one day confront this issue and decide that ‘late’ provision of the booklet is ‘too late’ for the purposes of being able to serve a s.21 notice.

There are therefore a number of situations in which a Tenant might argue that the landlord can never obtain possession by using a s.21, and so their tenancy can only ever be ended if the landlord becomes entitled to serve a s.8 notice. From the landlord’s point of view it is of critical importance that clear and conclusive records are kept throughout the life of the tenancy. This is also an important issue for managing agents, who will no doubt want to make their responsibilities clear in their terms and conditions.

Landlords who find themselves caught out by these rules may well wonder whether the reforms of s.8, expected to form part of the much-anticipated Renters’ Reform Bill, will provide a get-out: a new means for a landlord to end a tenancy where none of the present s.8 grounds apply. This currently seems unlikely. The only changes to s.8 we have been given reason to anticipate are tweaks to the existing grounds relating to persistent late payment of rent and anti-social behaviour. It remains possible that those drafting the bill will decide that the abolition of s.21 calls for a wider expansion of the s.8 regime by way of balance, perhaps even a catch-all provision along the lines of ‘the landlord has some other adequate reason’, but as this would seem to run contrary to the stated goal of increasing renters’ sense of security the inclusion of such a provision in the Bill, even as a transitional measure, seems fairly unlikely.