Issuing Section 21 Notice

Hi. I’m new to this forum and would be most grateful for advice/guidance on issuing a Section 21 to my tenant.

The Open Rent lease started on 30 September 2021. According to the lease the Break Clause can be activated by either party from 30 January 2022.

I’m anxious to get this right and not give my (very tricky) tenant any wiggle room to exploit.

I discovered that my EPC had expired (in 2019!!) and have a new one being issued today. My tenant is now aware that the EPC was expired. Is this something she could use against me?

I’m assuming activating the break clause means issuing a Section 21 Notice?
Should I copy this to her by email, in case she doesn’t get the hard copy immediately?

Is there anything else I need to consider?

Thank you for any tips and advice.

Assuming that you are correct about the break clause and that this is not a 12 month tenancy, then yes, a s21 would usually be enough to both break the fixed term and give notice for the resultant periodic tenancy.

There are quite a number of pre-requisites to a s21 which I’m not clear whether you’ve covered. You can find a flowchart here to check if yours will be valid:
Section 21 flowchart - Nearly Legal: Housing Law News and Comment
One of those pre-requisites is to serve your tenant with a valid copy of the EPC prior to serving the s21 notice, so you would need to give the tenant a copy now with evidence.

I’m not sure whether the fact that you didn’t have a valid EPC when the tenancy began would cause a judge to declare your s21 invalid, but it may well do. A high court judgement a couple of years ago ruled that a s21 could never be valid if there was no gas safety certificate in place when the tenancy began. You would need to check this with a specialist housing solicitor. In fact, if you are not experienced at evictions, I would suggest using the same solicitor to handle it for you as the process can be quite complex.

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Many thanks David.

I wonder if a delayed EPC would be judged the same as a Gas Safety Certificate, but I’m not prepared to risk it. I certainly don’t want a protracted legal battle (and related expenses) to get her out.

So I’ll have to sit out her 12 month lease.

Any advice on how to end/not extend the original lease? Can she insist on staying on?

I’ve always been happy for my tenants to go on to a rolling monthly lease, so this situation hasn’t occurred before.

By the way, it is a standard Open Rent 12 month lease, which includes a Break Clause, allowing either party to give 2 months’ notice, 4 months into the lease.

Waiting won’t really help. Tenancies don’t really end in any meaningful sense when the fixed term is up. They just become periodic on the same terms. You will still face having to serve notice unless she leaves or gives notice herself.

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