Landlord Law conference important update on Gas Certificates

by Neil Patterson

3 months ago

Landlord Law conference important update on Gas Certificates

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Landlord Law conference important update on Gas Certificates

Last Friday I attended the excellent and very informative Landlord Law Conference, which I thoroughly recommend to anyone. In particular it helped me keep completely up to date with all the latest legislation that has passed and is likely to be passed.

However, during the lecture by Sam Madge-Wyld (Barrister-at-Law) for Tranfield Chambers, there was a case revealed that nearly made me fall out of my chair. The lecture was 2018: The year in Review and looked at new legislation and cases over the past year.

The Caselaw

Caridon Property:td v Monty Shooltz. Central London County Court 2nd Feb 2018, HHJ Luba QC. The decision which was upheld on appeal in County Court was that:

A Landlord cannot serve a section 21 notice if they have failed to provide a new tenant a copy of the most recent gas certificate before the tenant occupies the premises.

Under the Deregulation act on tenancies started or renewed from 1st Oct 2015 a gas safety certificate must be supplied before a section 21 eviction notice can be issued. However, this new decision means a section 21 cannot be issued during the tenancy where a gas certificate was not issued before the tenancy started.

The error cannot be rectified by supplying the gas certificate at a later date!

This decision is not binding on other courts outside London, but many consider it the correct interpretation of Parliaments intended regulation. Therefore, this could be coming further down the track for all landlords so make sure you are compliant from here on in.

This case was written about by Tessa Shepperson of Landlord Law on 13/02/2018 and full details of the case and implications can be read in her article if you Click Here.



Comments

What about when a tenancy becomes statury periodic technically its a new tenancy then? Then the before occupation issue is void, no?

This is ridiculous as even health hazard warnings you get told to do the repair within a set time and then if you fail to the local authority takes legal action (never happened to me but I understand thats the process). And thats much more serious potensionally, and this would effect landlords that have even done the check just simply failed to give the tenant a copy (or have 'proof' they did.

Annie Landlord

3 months ago

My gas fitter used to use triplicate forms, so one copy for me, one for the tenant and one for him. That was easy, as the tenant was given their copy as soon as the check was completed. Now, however, he completes the form electronically and emails it to me, which means I need to print it and post to the tenant. Are we supposed to get written acknowledgement from the tenant that they have received the cert?

Trevor Cooper

3 months ago

A gas safety check should cost you around £60 and it makes sure that the system is safe and cannot cause the death of a tenant. It also makes sure you cannot go to prison! Surely the best advice is to get it done a month or so before the new tenant moves in. This way you have the paperwork in plenty of time to hand over along with the tenancy agreement, EPC, electrical safety cert etc...

With the new rules which allow you to carry out a re-test up to two months prior to the deadline date whilst retaining the original deadline date (as with a car MOT) it makes life even easier.

Hamish McBloggs

3 months ago

I don't understand the connection between an unseen but compliant gas safety cert and being unable to serve a s21, I will hunt down and read the judgement. Anyone have a handy link?

What if there is a simple but blunt denial that a current gas cert was seen prior to the tenancy commencing.

It becomes one word against another. Who wins?

Even if recorded delivery is used (signed for) it doesn't state that it is a current gas cert that is sent.

The only sure way is to get the prospective tenant to sign and date a copy of the cert and give it to the landlord.

or email with read receipt, although read receipts don't always work.

Make it a precondition of allowing the tenancy that a prospective tenant formally acknowledges sight of a current gas cert?

I have an online repository and give the tenant access to that. The repository access predates the tenancy and includes all sorts of stuff including every gsc, periodic electrical inspection, wall/loft insulation installation, instruction manuals, council tax bands, pictures with big arrows showing how the water is shut off, location of meters, pictures of meter readings, landlord contact details, DPS contact details .... and I make the tenant look, download ... I cannot (of course) make the tenant read it ...

In addition I print it all out and supply it in a physical folder that includes tenant personal information such as statutory DPS info (which they sign), a copy of the tenancy agreement, copies of co-signed letters that will be sent to services and councils such that I can be a third party user ...

For the benefit of doubt, there is no tenant personal info in the repository; only property info. Therefore GDPR compliant (I remove my signature, dob etc unlike stupid stupid companies house with their easy access fraudsters' online info service).

and I bet all the money in the British Virgin Islands that I haven't done enough a**e covering paperwork and I am still a bad boy.

Hamish

Chris Daniel

3 months ago

The Caridon v Shultz wasn't the first case, it was Assured Property services Ltd v Ooo 2017 (October, I believe, published in LAG )
I am aware of a third similar unreported case about a month ago, heard about third hand, sorry don't have details.
The legislation that these Possession cases are failing upon, is the Gas Safety ( Installation and Use ) Regs, 1998. Sec 36(6b)
Its been written about quite extensively,Tessa,Nearly Legal etc, basically, unless you can convince the tenant to sign a new AST ( giving a current Gas cert before you do ) you are stuffed [ sorry for non-legal terminology ] unless you have grounds under Sec 8 { rent Arrears } - courtesy of http://www.PossessionFriend.uk

Jim S

3 months ago

Reply to the comment left by Hamish McBloggs at 25/05/2018 - 16:27
Hello Hamish,

There is no connection between an "unseen but compliant gas safety cert and being unable to serve a S21" the British Government are doing this more and more to try and trip the landlord up so that the tenant can not be evicted. Remember that they have a homelessness problem on there hands and they want to ease their problem by making it difficult for you to evict. The same applies for the EPC cert and the How to rent booklet, if the How to rent is not the current version and you don't issue and EPC then you lose the right to use S21 I also believe that the same would run true for your EPC and How to rent booklet that if you didn't issue these BEFORE THE TENANCY STARTS then you lose right to use S21
If you fail to register your deposit within 30 days or forget to get the tenant to sign to say that they have had a copy of the deposit scheme terms and conditions then you lose your right to S21
If your tenancy agreement becomes periodic and it does not state that it becomes a CONTRACTUAL PERIODIC TENANCY then by default it becomes a STATUTORY PERIODIC TENANCY, if it becomes a statutory periodic then whenever your gas safety certificate changes, EPC date changes or a new version of the How to rent booklet is produced then you have to issue these new documents to your current tenant otherwise you lose the S21 We all know about issuing gas safety certs to out tenants when they are renewed but not everyone will know that an updated How to rent booklet must be given to your CURRENT tenant if the tenancy is a statutory periodic.
It's designed to trip the landlords up full stop! In my view they will do away with S21 anyway in a few years.
A question that I would really like answering is if you have a STATUTORY periodic tenancy (say a tenant that has been with you for 5 years) with a deposit that is protected in a deposit scheme 5 years ago, but the T and C's for that deposit scheme have changed then do we also have to ensure that we give the tenant these updated T and C's because technically speaking the tenancy is being renewed month to month and although the deposit is protected constantly the latest version of the T and C's now need to be issued as there is a new tenancy each month. Would we lose our S21 in this situation?

Mandy Thomson

3 months ago

Reply to the comment left by Chris Daniel at 26/05/2018 - 09:06But Chris, the premise is (at least according to Robert Brown of Arden Chambers who also raised this towards the end of the conference and others I've come across too) that if you fail to provide the gas certificate by the first day of occupation, you have created an assured tenancy.
It follows that you can't remedy this by issuing a new tenancy, as any replacement tenancy will also be an assured tenancy, because only a court can demote a tenancy.
For example, you can't change a Rent Act tenancy into an AST (or even an assured tenancy) by simply issuing a tenancy agreement that says it's an assured tenancy.

Mandy Thomson

3 months ago

Reply to the comment left by Chris Daniel at 26/05/2018 - 09:06
I believe the third case you're referring to is a variation on this. The landlord HAD served a gas certificate at the beginning of occupation, but she had simply answered the question on the accelerated possession claim form (N5B for England) as it's worded - that is, she just stated the most recent certificate. The court rejected her claim as they also wanted details of the first certificate, as per Caridon v Monty Shooltz.

Chris Daniel

3 months ago

Reply to the comment left by Mandy Thomson at 26/05/2018 - 17:51
No, not serving a Gas cert just prevents possession, it doesn't create any different tenancy.
Have a look at Nearly Legal who suggest the new AST as a potential answer. 😉

Chris Daniel

3 months ago

Reply to the comment left by Jim S at 26/05/2018 - 09:51
No, the same problem Does NOT exist for EPC and H2R, just that they must be served Before a Section 21.
Have a look at Nearly Legals posts on this.

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