Section 21 has never been purely a matter of giving two months’ notice. Since the Deregulation Act 2015, a landlord in England cannot obtain a possession order under section 21 where certain prescribed documents were not given to the tenant. The notice can be procedurally perfect and still fail, because the defect happened at the start of the tenancy rather than at the end of it.
What follows is the document set that has repeatedly decided these cases. It is worth reading it as a checklist of things to hold evidence of, not merely things to have done.
The gas safety record
Where the property has a gas appliance the landlord provides, the gas safety record must be given to the tenant. A copy goes to an existing tenant within 28 days of the check, and to a new tenant before they occupy the property.
This is the requirement that has generated the most litigation. The courts have considered whether a record served late can be cured by serving it before the section 21 notice, and the answer has shifted with the case law. The safe position is unchanged and simple: serve the current record before the tenant moves in, and serve each subsequent record within 28 days. Keep proof of service, because proving you served it is a different problem from having served it.
LEGAL BASIS
Gas Safety (Installation and Use) Regulations 1998
Regulation 36 places a duty on landlords to ensure every gas appliance and flue they provide is checked for safety at intervals of no more than twelve months by a Gas Safe registered engineer, to keep records for two years, and to issue a copy to the tenant.
The electrical installation condition report
Since the 2020 Regulations, the fixed electrical installation must be inspected and tested at least every five years, and a copy of the report must be given to the tenant. A new tenant must receive it before they occupy; an existing tenant within 28 days of the inspection.
A local authority can also request the report, and it must be supplied within seven days. Where the report is unsatisfactory, remedial work must be completed within 28 days, or sooner where the report says so, and written confirmation of completion supplied to the tenant.
LEGAL BASIS
Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020
Fixed electrical installations in rented homes must be inspected and tested at least every five years. The report goes to tenants, and to the local authority within seven days of a request.
The energy performance certificate
A valid EPC must be given to the tenant free of charge. It must also have been commissioned before the property was marketed, which is a separate duty and a common gap where a property was let privately without a listing.
The minimum energy efficiency standard sits alongside this. A property may not be let where the rating is below band E unless a valid exemption is registered on the PRS Exemptions Register. A proposal to raise the minimum has been under consideration; treat the current minimum as band E and check the position before making long-term investment decisions.
LEGAL BASIS
Energy Performance of Buildings (England and Wales) Regulations 2012, with the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015
A valid EPC must be commissioned before a property is marketed and made available to prospective tenants or buyers. The 2015 Regulations set the minimum energy efficiency standard, currently band E, which has applied to all existing tenancies since April 2020. Exemptions must be registered on the PRS Exemptions Register to be relied on.
The How to Rent guide
The current version of the government’s How to Rent guide must be given to the tenant at the start of the tenancy. It is updated periodically, and serving a superseded version has been treated as a failure to comply.
It can be served by email where the tenant has agreed in writing to accept service that way. That agreement is worth getting in the tenancy agreement itself rather than relying on a later exchange.
The deposit, and why it belongs on the same checklist
Where a deposit was taken, it must have been protected in an authorised scheme and the prescribed information given to the tenant. An unprotected deposit or missing prescribed information blocks section 21 in the same way a missing gas record does, which is why it belongs on the same pre-notice checklist even though it is not a safety document.
What to do now
Build the file before you need it. For each tenancy, hold the current gas record, the EICR, the EPC, the How to Rent version served, the deposit protection certificate and prescribed information, and dated evidence of service for each. Where any of the safety records has lapsed, the fix is to get the inspection done and serve the record, not to serve a notice and hope.
And because the underlying regime is changing, take advice on the current commencement position before relying on section 21 at all. The document set above remains the right thing to hold either way: the same records are prerequisites for a compliant tenancy regardless of which possession route eventually applies.