Gas certificates and Section 21 – be compliant or you may pay the price

by Paul Shamplina

14:55 PM, 23rd July 2018
About 5 months ago

Gas certificates and Section 21 – be compliant or you may pay the price

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Gas certificates and Section 21 – be compliant or you may pay the price

Landlords, did you know that if you did not provide a gas safety certificate at the start of a tenancy (be it a first agreement or written renewal after 1st October 2015), before the tenant moved in, you may find that any Section 21 notice served during the term is invalid?

This is not a well-known issue, but one that is starting to gain traction following the Caridon Property Ltd v Monty Shooltz case back in February 2018. At the Central London County Court, landlord Caridon Property failed to obtain a possession order, based on their Section 21 notice, because they failed to serve a copy of a current gas safety certificate BEFORE the tenant moved in on the 13th April 2017; it was served on the 26th April 2017, after the tenant moved in.

This contravened regulation 36 (6) Gas Safety Regulations 1998, which states: ‘a copy of the last record made in respect of each appliance or flue is given to any new tenant of the premises to which the record relates before that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises’.

His Honour Judge Jan Luba QC ruled that if a current gas safety certificate was not served on the tenant before they took up occupation of a property then any Section 21 Notice could not be relied on. This ruling sent a strong message to housing practitioners and landlords alike.

Under the Deregulation Act, this decision applies to all written agreements after 1st October 2015. From 1st October 2018, it will apply to all Assured Shorthold Tenancy agreements, irrespective of when they began. Note from 1st October 2018, the newer Section 21 6a Notices will have to be used, not the old Section 21 4a and Section 21b.

This was not a Court of Appeal ruling, but a County Court Ruling. However, because it was heard before a circuit judge, and the only place that circuit judges sit in London is at the Central London Country Court, the London courts have decided that this ruling is binding in all London courts. It is only a matter of time before it goes nationwide with all courts taking a similar stand

So, what does the link between gas safety certificates and Section 21 mean for landlords?

If you gave your tenant a tenancy after the 1st October 2015, but failed to serve a gas safety certificate prior to them moving in, then your AST will be treated like an Assured Tenancy and possession using a Section 21 Notice will not be possible, just as if you failed to protect the tenant’s deposit within 30 days.

Landlords need to be aware of the risks that if they go to court, their case may get struck out by the judge. We are sure more judges will be briefed about this case and more tenants will be informed about this type of defence. If you are a landlord in this situation, then you may have to rely on a Section 8 procedure, but this is only possible where there is a breach of tenancy.

The only way this can be rectified is with the introduction of new legislation.

Landlords should take the following actions to ensure they are compliant with current regulations regarding gas safety certificates:

– Ensure tenants are provided with a gas safety certificate in advance of the start of the tenancy and certainly before the tenant moves in.

– Also remember, as well as the gas safety certificate, you must provide a valid energy performance certificate (EPC) and the new updated (9th July 2018) How to Rent Guide

– Keep a detailed record of the date and time of issue of the certificate on the tenancy file. Ideally, the tenant should sign an acknowledgement to confirm the time and date of receipt. This could then be used as evidence in any subsequent possession action.

– In a case where a gas safety certificate was not served at the start of the current tenancy and a replacement tenancy is being contemplated, ensure the latest certificate is served before the replacement tenancy begins.

Contact Landlord Action

Specialists in tenant eviction and debt collection. Regulated by The Law Society.


Comments

Tobias Nightingale

11:18 AM, 26th July 2018
About 5 months ago

Hi landlord action,
I would have thought it would be easy to find out if section 21 eviction cases have been done in London since the ruling. That would clarify whats going on there. Needless to say this is appauling after even health hazard warnings from councils you get the warning and time period to take action to do said things and then IF you dont they go ahead. That does not apply in this case and could even apply if someone had the check done AND even if they gave cert to tenant did not just get proof!

Mike

10:52 AM, 28th July 2018
About 5 months ago

You won't have this problem in HMOs because you would display a gas safe certificate in one common part of your HMO where you would post any other notices, instead having to make copies each time a new tenant moves in, do you step in a taxi and ask for a copy of insurance certificate? Do you step in restaurants and ask to see their gas safety record copy? you are just as vulnerable in a restaurant, a hotel as you would be in any private rented property. Where do these new bunch of Judges and law makers come from lacking in complete common sense?
It should not matter if a copy of gas safety record has been given at the beginning of the tenancy or not, as long as a certificate is valid and in force on the date the tenant moves in.
Judges and law makers need retraining in common sense because their brains have been overwhelmed by judicial matter and common sense went out of their heads.

It is a clear case of harassment of landlords.
shame we can do nothing about it since now we would be leaving EU and we can't appeal with ECJ.

Michael Barnes

0:01 AM, 31st July 2018
About 4 months ago

Reply to the comment left by Mike at 28/07/2018 - 10:52
It is not about common sense; it is what the regulations say, so it is government that you should be complaining about.

KateW

6:50 AM, 3rd August 2018
About 4 months ago

Would a section 21 be valid if served when the gas safety certificate had lapsed, but was served at the start of the tenancy? Would you recommend serving a second notice with a current gas safety certificate to make the notice valid?

Mark Alexander

8:16 AM, 3rd August 2018
About 4 months ago

Reply to the comment left by KateW at 03/08/2018 - 06:50
A S21 served at the start of a tenancy is a very old strategy which is no longer valid.

You will need to get the CP12 Gas Safety check done and then serve a new S12 notice.

KateW

10:27 AM, 3rd August 2018
About 4 months ago

Reply to the comment left by Mark Alexander at 03/08/2018 - 08:16
Thanks

Michael Barnes

19:51 PM, 3rd August 2018
About 4 months ago

Reply to the comment left by KateW at 03/08/2018 - 06:50
Would a section 21 be valid if served when the gas safety certificate had lapsed, but was served at the start of the tenancy?

Do you mean the S21 served at the start of the tenancy or the gas safety certificate served at the start of the tenancy?

I read it as GSC, but Mark seems to have read it as S21.

Mike

0:30 AM, 4th August 2018
About 4 months ago

The law says that a gas safety record must be valid before any tenancies commence, that is a legal requirement and it should never have any lapse period, so it should be renewed well before the current one expires, however the issue here is should a copy of it be given to a tenant at the beginning of a tenancy, as far as I know this may be so with normal houses but for an HMO you can display the certificate ina common area where everyone can see it is valid and in force.

we need a degree in law to become a landlord.


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