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.
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Member Since November 2015 - Comments: 584
5:20 PM, 27th May 2018, About 8 years ago
The big issue here is going to hit us in October when our older tenancies become subject to Deregulation. If you didn’t serve your GSCs to new tenants on sign up, as very many didn’t (it wasn’t required) & if they did, they almost certainly didn’t get a signed form confirming receipt by the tenant (hence no proof of service). Very many older tenancies will then be ineligible for use of section 21.
Member Since July 2013 - Comments: 1434
12:52 PM, 28th May 2018, About 8 years ago
Reply to the comment left by Tobias Nightingale at 24/05/2018 – 13:08
What about when a tenancy becomes statury periodic technically its a new tenancy then? Then the before occupation issue is void, no?
Occupation and tenancy are two different things.
Their occupation started when they moved in and does not stop at end of a tenancy.
Member Since February 2016 - Comments: 39
7:58 AM, 29th May 2018, About 8 years ago
Reply to the comment left by Michael Barnes at 28/05/2018 – 12:52
When the tenancy turns periodic, it’s not a new tenancy. If for some reason you issue and sign a new tenancy with an existing tenant, simply re-issue the current gas cert at that point (along with all other relavent paperwork)
Member Since November 2013 - Comments: 1130 - Articles: 2
9:56 AM, 29th May 2018, About 8 years ago
Reply to the comment left by Chris Daniel at 27/05/2018 – 15:04Please see Sam’s comment and the ensuing discussion between Sam and Giles Peaker.
As The Gas Safety (Installation and Use) Regulations 1998 states, “a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises” I believe it is highly likely a replacement tenancy WON’T resolve the gas safety certificate issue (I bet you anything we will see a case before long where this happens) and I believe this what Robert Brown meant when he said that in Caridon v Monty situation the landlord has unintentionally granted an assured tenancy.
In practice, all any poor landlord caught in this trap can do is grant a new AST then serve s.21 on expiry of the FT and just hope the judge takes Giles Peaker’s position and not Robert Brown’s!
Member Since September 2016 - Comments: 127
10:24 AM, 29th May 2018, About 8 years ago
Reply to the comment left by Kate Mellor at 27/05/2018 – 17:20
On Kate Mellor’s comment – it has always been required to provide the GCS to the tenant at the start of the tenancy, ever since the 1998 regulations.
On Mandy Thomson’s comment on replacement tenancy – frankly it could go either way. Which means that one certainly couldn’t rely on providing the GSC at the start of a subsequent tenancy as remedying the situation. At least not until a higher court has decided that it does., or the AST regulations are amended.
Member Since November 2013 - Comments: 1130 - Articles: 2
12:06 PM, 29th May 2018, About 8 years ago
Robert Brown has tweeted his comment; he agrees with Giles Peaker:
Member Since May 2016 - Comments: 1580 - Articles: 16
11:06 PM, 29th May 2018, About 8 years ago
Reply to the comment left by Mandy Thomson at 29/05/2018 – 12:06
As Giles says, not a guarantee, but what other options are there, zilch – other than finding a ground under Section 8 ( preferably, mandatory ! )
Member Since November 2013 - Comments: 1130 - Articles: 2
10:53 AM, 30th May 2018, About 8 years ago
Reply to the comment left by Chris Daniel at 29/05/2018 – 23:06
Which is why this is such a pernicious situation to be in – you may have unintentionally granted an assured tenancy – in a system where getting possession under grounds is expensive, stressful, protracted and often impossible!
I think all any landlord caught in the Caridon v Monty bind can do is to keep serving and enforcing s.21 until they get a judge who rules in their favour, or use section 8 if the tenant has run up arrears in the meanwhile.
Caridon v MS is Superstrike on steroids (at least there was a way out of Superstrike)!
Member Since November 2015 - Comments: 584
11:27 AM, 30th May 2018, About 8 years ago
Thanks for correcting my error Giles, and apologies for my dodgy memory! I’ve only been personally signing up my tenancies for the past two years. It is obvious though I guess in light of the gas safety regs wording ? but I hadn’t clocked my mistake.
I do know I don’t have any proof in my older tenancy files that the GSC was issued on commencement though and as far as Shelter is concerned that will be almost as good as it not being served at all.
Member Since July 2013 - Comments: 1434
4:09 PM, 30th May 2018, About 8 years ago
Reply to the comment left by Trevor Cooper at 29/05/2018 – 07:58When the tenancy turns periodic, it’s not a new tenancy.
That is not what S5(2) Housing Act 1988 says, and the Superstrike judgement on appeal confirmed (unless it is contractual periodic).