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Lawbite: No Energy Performance Certificate? No problem (possibly!)

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  • Real estate
  • Real estate litigation - LawBite



Minister v Hathaway and another [2021] EWCA Civ 936

The Court of Appeal has held that a landlord’s s.21 notice pursuant to the Housing Act 1988 (the “Act”) to terminate an assured shorthold tenancy (“AST”) was valid despite the fact that the tenant had not first been provided with an energy performance certificate (“EPC”).

Sections 21A and 21B of the Act provide that a landlord cannot serve a valid s.21 notice if it is in breach of a prescribed requirement.  One of these prescribed requirements is to provide the tenant with an EPC in accordance with Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI 2015/1646) (the “Regulations”). 

From March 2009 the tenant occupied his flat under a statutory periodic tenancy following the expiry of a one-year AST. In December 2018 the landlord served on the tenant a s.21 notice terminating the tenancy. The tenant argued that the notice was invalid as the landlord had failed to provide him with an EPC as required by sections 21A and 21B of the Act. 

The Court of Appeal held that the landlord’s s.21 notice was valid.  It found that Sections 21A and 21B, which were inserted into the Act by the Deregulation Act 2015, only came into force on 1st October 2015 and apply only to ASTs granted on or after that date.  Similarly Regulation 2 of the Regulations only apply to tenancies granted on or after 1 October 2015. The tenant’s statutory periodic tenancy commenced in March 2009, well before October 2015, and as such sections 21A and 21B of the Act did not apply to it.

Key points

  • landlords are required to provide prescribed information to their tenants under s.21A and s.21B of the Act before service of a s.21 notice, otherwise the notice is invalid. However, this requirement only applies to ASTs granted on or after 1 October 2015
  • The Secretary of State does have the power to extend the scope of Sections 21A and 21B so that they apply to any ASTs existing on 1st October 2015 (not just those created on or after that date) but has not exercised that power 

For more information, contact

Haider Ali
Apprentice Solicitor
T: +44 121 232 1162