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Devil is in the detail

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An HMO tenant renting a single room does not need to be given an individual Energy Performance Certificate at the commencement of his or her tenancy, Newcastle County Court has ruled. But the 2018 case of Home Group v Henry serves as a warning to landlords that when it comes to possession, it is the detail that is important, says Sharon Betton.

The tenant in this case rented a room in a house in multiple occupation on an Assured Shorthold Tenancy of a room with en-suite facilities. We do not know the background to this case, but in September 2017, a section 21 notice was served.

Usually when a section 21 is used, there is no argument, possession must be granted if all the conditions around it are met. It is for this reason that a section 21 is the preferred option for many landlords, being almost automatic and quicker than going through the route of section 8 where a case has to be proved on one or more of the permitted grounds. A survey found that 50 per cent of landlords using a section 21 had rent arrears or anti-social behaviour grounds available to them but had, even so, chosen to use the section 21 route.

The tenant in this case, however, was not prepared to accept his notice graciously. He chose to fight it and obviously trawled the Internet to find a reason to oppose the eviction. What he found was the requirement to provide tenants at the start of their tenancy with an Energy Performance Certificate.

That he should choose to fight his eviction on this point suggests that the tenancy and landlord were decent, giving him nothing to fight on other than this.

Had I been contacted, my advice would be that surely the building itself had an energy performance certificate which I would advise should be copied and fixed to the wall in one of the communal areas. But use of public money prompts many to pursue cases which do not appear sensible.

The tenant lost. Newcastle County Court decided that only significant differences between rooms would generate the need for a separate EPC. This room had no significant alterations; installing a kitchen and shower room might have made it different enough to require different treatment, but this had not been done. The tenant still needed and used the communal facilities of kitchen, lounge and shower room. Had the room had full facilities allowing him to live independently, he would have required an EPC and also to pay council tax.

Home Group, the landlord, won its case, but as a result of the challenge the tenant had remained in situ far longer than the section 21 notice suggests they wanted him there. It had provided what appears to have been a good standard of accommodation and its reward was months of legislative wrangling and costs.

It seems Home Group did exactly what it should have done. But the case stands as a warning to private landlords who lack the means to enter into litigation. It reminds them of the importance to dot every ‘i’ and cross every ‘t’ . All documents relating to the tenancy should be copied and tenants given all the paperwork to which they are entitled.

The Internet can provide answers to questions but can also be used to find details that can be cited as a means of throwing up hurdles to rightful possession.

This case was pre-pandemic and many possession cases are on hold. Landlords should be prepared for some ‘fun’ when normal service finally resumes.