In this article Brittany Pearce considers some of the difficulties still posed by the Deregulation Act 2015 for defaulting landlords and outlines the issues still outstanding following the Court of Appeal’s decision in Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760.
We are now, very nearly, a decade on from the commencement of the Deregulation Act 2015. Whilst some initial areas of confusion have been cleared up by the Court of Appeal’s decision in Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760, it is not the catch-all answer for defaulting landlords that some assume it to be. In this article Brittany considers what Trecarrell actually decided and explore some of the grey areas still requiring an authoritative decision.
To recap, the 2015 Act prohibits most landlords from using the section 21 (‘no-fault’) process to obtain possession unless they have complied with the particular requirements concerning the service of how to rent checklists (“the Checklist”), gas safety certificates (“GSC”) and energy performance certificates (“EPCs”).
The Checklist rarely poses an issue; if it has not been served at the start of the tenancy it can be sent to the tenant prior to (not at the same time as) service of a section 21 notice. A belts and braces approach is to send both the original version that existed at the commencement of the tenancy and any revised version.
GSCs have proven to be more of an issue. Trecarrell confirmed that where a GSC exists prior to the commencement of the tenancy but is not served, late service prior to service of a section 21 notice will remedy the defect. Similarly, a failure to provide copies of further GSCs which relate to subsequent inspections is unlikely to be fatal if they are also provided before the section 21 notice is served (note that in Blagg v Gharbi & Gharbi (11 May 2023, County Court at Manchester) the landlord was prohibited from using the section 21 process due to the failure to serve the GSCs obtained during the currency of the tenancy).
However, a point that often escapes unnoticed is that in Trecarrell there was a GSC in existence when the tenancy came into existence; it simply had not been served. That is different from there being no GSC at all at the date the tenancy came into existence. There is a non-binding county court decision on appeal – Byrne v Harwood-Delgado (21 June 2022, County Court at Luton) – in which HHJ Bloom held that such a failure would forever prevent a landlord from being able to serve a section 21 notice.
This point has cropped up twice in Brittany’s recent cases at a pre-action stage and requires landlords either to pursue litigation at substantial risk or to find an alternative solution to gaining possession, such as by offering tenants favourable terms to vacate. In Brittany’s cases, she was able to identify the risk prior to issue, providing the landlords with alternative suggestions as to how they might regain possession. However, if the point is not identified pre-issue, or if the mistaken view is taken that Trecarrell can be relied on as a salve, then you risk protracted, costly litigation, potentially requiring a decision to be made on appeal. Further, once the difficulty has become apparent to a tenant it may be more difficult or costly to reach a settlement, as they will be aware of their bargaining power. For these reasons, if you are aware that there is a default that does not squarely sit within the Trecarrell factual matrix, it may be more cost-effective to obtain counsel’s advice prior to issuing the claim, so that risks and alternative solutions can be discussed.
What of EPCs? There is no authority as to what approach a court will take in respect of an EPC served late but it is to be anticipated that the court’s approach will be similar to that adopted in Trecarrell.
A decade later, the 2015 Act remains a thorn in the side of defaulting landlords, with authoritative decisions required as to the failure to obtain a GSC prior to a tenant’s entry, and as to failings in respect of the EPC. As for current affairs, permission to appeal to the Court of Appeal has been given in D’Aubigny v Khan & anor (1 Dec 2023, CLCC) as to whether the GSCs, EPCs and Checklists can be deemed served on a tenant under section 7 of the Interpretation Act 1978. The outcome of the appeal is likely to be of wide-ranging interest when it comes to the question of service.
Brittany specialises in property and trusts law. She has been identified as a leading junior by the Legal 500 and is ranked in Chambers UK. Find out more about Brittany here.
This article is provided for general information purposes only. It does not constitute legal advice and reliance should not be placed on it. Specific advice should be obtained in relation to any case or matter.