Gas certificates and Section 21 – be compliant or you may pay the priceMake Text Bigger
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.
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