Possession claims and safety certificates: protecting yourself
Section 21 notices provide landlords with confidence they can regain possession of their properties; however simple oversights such as a mistake in the paperwork can invalidate them. NRLA Head of Policy James Wood examines recent legal cases and audits impacting landlords, and reminds you of the importance of checking - and double checking - documents.
While the future of Section 21 remains in question, under current rules, provided you have met all of the requirements before serving the notice, you can be confident you can take possession of your rental property.
One of the main requirements for a valid Section 21 notice is the landlord must provide certain required information to the tenant.
Since 2015 landlords in England have had to provide –
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A valid gas safety certificate prior to occupation and at least the latest certificate if the original has expired;
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The Energy Performance Certificate (EPC);
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The deposit certificate and prescribed information (if required) within 30 days of receiving the deposit; and
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The version of ‘How to Rent: a checklist for renting in England’ that was current when the tenancy began.
If any of these important documents were not given, then the Section 21 notice will be invalid, wasting months of the landlords time and the cost of a court application.
Given their importance, it’s not surprising that most landlords are very good at providing these documents as and when they are needed.
However, even where they are served, there can be issues.
Missing information on gas safety certificates
We were recently made aware of a county court case in which the landlord did not receive a possession order because the gas safety certificate had not been filled out correctly.
A valid gas safety certificate must include –
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the date of the check;
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the address of the premises;
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the name and address of the landlord of the premises (or, where appropriate, his agent);
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a description of and the location of each appliance or flue checked;
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any safety defect identified and any remedial action taken;
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the name and signature of the individual carrying out the check; and
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the registration number with which that individual, or his employer
In this particular case, the engineer had not filled out the landlord’s name and address on the certificate.
While this may seem a minor issue, as the tenant already knew the landlord’s name and address, it is a requirement for this form. As a result, the case was adjourned as the court questioned the certificate's validity.
Electrical safety certificates
In Wales, landlords also have to consider the electrical installation condition report (EICR) before serving the Welsh equivalent of a Section 21 notice (Form RHW16).
Under the rules in Wales, landlords are required to obtain an EICR and provide a copy to their tenants. If remedial work is required, the landlord is also required to provide the tenant with confirmation of the remedial work done.
Failure to do this means the property is considered unfit for human habitation. This prevents the landlord from serving notice and potentially allows the tenant to reclaim rent paid while the property was considered unfit.
The EICR requirements do not just affect private landlords in Wales.
A number of social landlords will appear in court next week due to failures to provide copies of the EICR to their tenants.
The outcome of this case may have implications for the private rented sector and we will keep Welsh members up to date on this as it develops.
Rent Smart Wales has also been performing a number of audits of PRS tenancies. It has identified a number of defective reports that could jeopardise the landlord’s possession claim. Typically, these defective reports are because either –
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The report is an Electrical Installation Certificate (EIC) rather than an Electrical Installation Condition Report (EICs are only valid for new builds in Wales); or
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The EICR has been marked as satisfactory but includes serious codes that would normally require further work or investigation (C1, C2 or FI).
A valid electrical check in should lead to an EICR with either no problems identified or only C3 codes listed on the certificate.
The presence of one of the other codes - or the wrong type of certificate - could lead to the tenants successfully reclaiming rent or preventing a possession claim.
Best practice
To avoid issues with your own certificates, you should always check everything has been filled out correctly, and all of the required information is included as soon as you receive the certificate.
Ultimately it is your responsibility to provide the information to your tenant, so it is vital that you can provide a valid certificate. If you identify a problem with the report you should contact the person who performed the inspection straight away to rectify it.
Help is at hand
A reminder that if you need a safety certificate, you can order one at the click of a button when you use Safe2. Safe2, powered by the NRLA, is a platform designed to help landlords order an array of property certificates with ease. With discounts on all certificates for all NRLA members you can find out more here.
