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9:27 AM, 9th January 2019, About 5 years ago 11
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Following the Caridon Property Ltd v Monty Shooltz case in February 2018, if a gas safety certificate is not provided at the start of a tenancy, before the tenant moved in, landlords may find that any Section 21 notice served during the term is invalid.
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.
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.
The NLA reported its advice line has been inundated with questions regarding this and has been lobbying government to clarify the position for Landlords. However, the Ministry of Housing, Communities and Local Government (MHCLG) has said it does not intend to address the Caridon Property Ltd v Monty Shooltz ruling and will only update guidance on the .Gov website to emphasise landlords’ responsibilities.
Richard Lambert, NLA CEO said: “Having pressed the government to respond to this judgement for nearly a year their answer seems to be we’re not that bothered.
“The Ministry clearly doesn’t understand the impact it is having. The NLA Advice Line is taking more and more calls from landlords who thought they had complied with the law and now find themselves facing a disproportionate penalty for an administrative error. We cannot believe this is what Parliament actually intended.
“The NLA recognises the vital importance of ensuring landlords arrange an annual gas safety check with a Gas Safe engineer, but we do not support the de facto introduction of assured tenancies because landlords cannot rectify an unwitting error made before a tenancy begins.
“We have no intention of letting this rest and will continue to lobby for change.”
Paul Shamplina of Landlord Action confirmed the following for Property118 readers in his article 6 months ago: click here
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.
Specialists in tenant eviction and debt collection. Regulated by The Law Society.
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Gromit
9:40 AM, 9th January 2019, About 5 years ago
"NLA accuse Government of ‘not being bothered’ to help Landlords"
Finally sunk in.
Annie Landlord
10:36 AM, 9th January 2019, About 5 years ago
I haven't had a change of tenants for years, but I now have a signing sheet, which the tenant signs and dates to prove I have provided documentation, eg the new EPC. I wonder what, if any, other proof would be accepted? Proof of postage, or photo of a letter being pushed through the letterbox?
Kate Mellor
10:49 AM, 9th January 2019, About 5 years ago
Reply to the comment left by Annie Landlord at 09/01/2019 - 10:36
I believe a form N215 Certificate of Service, completed at the time would be acceptable.
I personally use a letter stating the documents the tenant has been provided with dated and signed by the tenant when I sign them up (as you do), but if I were sending out documents where I wouldn’t see the tenant I’d also complete the court form for the file as it’s considered ‘proof’.
Alison Walker
11:15 AM, 9th January 2019, About 5 years ago
I now have a property folder for each property which includes all the manuals for any equipment supplied, How To Rent Guide, EPC, Copy of the Gas Safety Record, Legionella Risk Assessment Form, Tenant Fact Sheets re condensation & bed bugs, maintenance notice, privacy notice, a cd containing the inventory photos and anything else that may be relevant to that particular property. These contents are also listed on the inventory which is signed by the tenant at check in so hopefully I've dotted all i's and crossed all t's! I also provide a couple of extra plastic folders in the file for the tenants to keep their tenancy agreement and inventory in (and some actually do this!)
Mike
11:36 AM, 9th January 2019, About 5 years ago
To meet with latest 2015 Deregulation Act, terms, rules or whatever you call it, for all existing tenancies that began before 1st October 2015, I tried to update my existing tenant with this latest requirement by personally serving these on him, and requesting him to sign a declaration that he has been served these, but he refused to accept them and refused to sign for them, I warned him by refusing to accept and signing acknowledgement would go against him in a court should I need to serve him a Section 21 notice in future. I left the documents with him, deemed as served, and took a witness with me who saw him refuse to accept or sign for them, what would the Courts do now? I cannot stuff those paperworks down a tenants throat can I ?
Of course the Judge could say did I try to serve these on him using postal method, well no I did not as I thought serving in person guarantees that tenant received them as post can go missing or delivered incorrectly, I regularly have to return letters shoved through my letter box addressed to altogether different streets and often different towns! No kidding.
Kate Mellor
14:24 PM, 9th January 2019, About 5 years ago
Reply to the comment left by Mike at 09/01/2019 - 11:36
Hi Mike, did your tenant explain why they didn't wish to accept the documents?
In this case I would post them out using first class post, (not signed for though as the tenant could refuse to accept it), and also complete a form N215 Certificate of Service which you can download from the GOV.UK website. Clip the post office receipt and copies of the documents sent to the form and file it all in your tenant file for your records and future use should you need to issue your tenant a section 21 notice (which it sounds as though you may be planning to do).
Once posted and the requisite amount of time has passed to allow for delivery (two business days), service is deemed to have occurred regardless of the potential for items to get lost in transit.
Michael Bond
15:27 PM, 9th January 2019, About 5 years ago
Don't think this is an oversight by this government. It is waging a war on landlords, presumably thinking that we have nowhere else to go (Corbyn's Labour, Libdems, Monster Raving Loonies?) and hoping to pick up some cheap credit with the BBC and the like. Even the NLA (of which I am a member) has managed to express strong criticism in public.
Do councils, housing associations, etc. face the same requirements?
Mike
15:29 PM, 9th January 2019, About 5 years ago
Thank you kate, yes I am in the process of evicting him, I had to use S8, but I have a feeling the case will be rejected by a court.
Kate Mellor
22:50 PM, 9th January 2019, About 5 years ago
Reply to the comment left by Mike at 09/01/2019 - 15:29
Nightmare! Were you able to use a mandatory ground or only a discretionary one? If it was discretionary I’d suggest you get on and serve everything you need to and give notice under section 21 as a back up in case your section 8 fails. Section 8s are notoriously difficult to succeed with. A former Shelter worker told me that they used to rub their hands together with glee when someone came in with just a section 8. Your tenant seems unusually well informed & may well have been primed by Shelter.
Mike
0:41 AM, 10th January 2019, About 5 years ago
Kate this tenant eviction is not going to be an easy one, this guy has some mental problem, he thinks no one can be evicted if they pay some money or part rent regularly, he does not know what paying rent regularly means, it does not mean one can pay any amount less than the full rent due each month, piling on rent arrears, he is now 4 months behind on rent arrears!
His excuses are always that he had other emergencies and had to divert money allocated for paying rent to someone else, he thinks his rent can wait, whilst he will never cut back on his cigarettes and drinks! Hopefully he will not have enough money to pay me all the rent arrears on the day of the hearing and the court must then act on the mandatory ground i.e. owing rent for full two months and make a possession order.
My biggest problem is that I filed an application using PCOL (possessions online) where only simple rent arrears are dealt with, just on ground 8, if you need to add other grounds like Ground 10 , 11, 12 and 14 then other grounds cannot be taken into consideration, the tenant has breached many AST conditions, has been involved in two serious assaults, has been intimidating me and other tenants, abusive, vile, dominant, and horrible to everyone now, he simply needs to be taken out as no one can stand him any more .