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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.
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