Reconsider Gas Safety Regulations alongside changes to Section 21

by CARIDON LANDLORD SOLUTIONS

16:38 PM, 15th May 2019
About A week ago

Reconsider Gas Safety Regulations alongside changes to Section 21

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Reconsider Gas Safety Regulations alongside changes to Section 21

Many of you will be aware of the Caridon Property Ltd v Monty Shooltz case.  In short, the landlord, Caridon Property, failed to obtain a possession order based on their Section 21 notice, because His Honour Judge Jan Luba QC ruled that that the requirements of the Deregulation Act 2015 meant their failure to issue a gas safety certificate before the tenancy began invalidated the subsequent Section 21 notice for repossession.

From our perspective at Caridion Landlord Solutions, we fully recognise the vital importance of ensuring landlords have an up to date Gas Safety Certificate.  However, the fact that there is nothing landlords can do to resurrect this issue if they failed to provide a gas safety certificate before the tenancy commenced, even if they provided it since, seems a little austere.  In addition, what has not been widely reported in the Monty Shooltz case is that the dwelling itself did not have any gas appliances, these were only in the communal areas therefore we feel the ruling was misplaced and misguided.

Although the case was a County Court ruling, not a Court of Appeal ruling, it was heard before a Circuit Judge.  Since 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, and now appears to have set a precedence for courts nationwide, meaning many more landlords will be trapped by this ruling.  The strict judicial interpretation of the legislation, which could prevent thousands of landlords serving a Section 21 notice because of an unwitting administration error, traps them in a position they simply cannot rectify.

We had been liaising with the National Landlords Association (NLA) and Landlord Action who, like us, wanted to call on the Government to reconsider addressing the Monty Shooltz ruling.  However, of course the industry recently learnt that there is a possibility that Section 21 notices will be scrapped altogether in the not too distant future, turning this issue on its head entirely.

We spoke to Barrister Sena Frimpong at Holborn Chambers who agrees that the outcome of this ruling cannot have been Parliament’s intention when the legislation of Gas Safety was brought in. Two interesting points he made were: –

  1. Using deposit protection as an analogy, a landlord who has not protected the deposit in an authorised scheme within the relevant time limits is similarly prevented from serving a Section 21 notice. However, this is only UNTIL the tenant’s deposit is returned in full or subject to any deductions agreed with the tenant or the tenant makes an application to the court in respect of the landlord’s non-compliance, and the claim is either determined by the court, or withdrawn, or settled out of court between the landlord and tenant. The difference is, there is a route to resolution, so why is the Gas Safety regulation any different?
  2. If a landlord cannot serve a Section 21 to a tenant indefinitely owing to the time in which the Gas Safety Certificate was issued, what would happen if the landlord sold the property and transferred ownership to someone else with the tenant in situ? Would the new landlord be bound by his predecessor’s mistake?

For now, we await the possible abolition of Section 21 and/or subsequent changes to Section 8, but we would urge the government to address important issues such as this, not only to enable fairness in the Private Rented Sector, but for common sense.

Contact Sherrelle for offline Universal Credit advice

Sherrelle is an independent consultant and is recommended by Property118 for landlords who require professional advice and assistance in regards to dealing with Universal credit related matters


Comments

blair

7:33 AM, 16th May 2019
About A week ago

Gas safety Certificates. In my opinion annual gas certificates are too often. Unless the appliance is not room sealed and or is in a bathroom. then modern appliances now have so many safety/cutoff features this annual testing is a waste of money and time consuming

All new appliances should clearly have a installation date and certified Then for first 4 years say no annual certificate is required then bi annual

The trouble is Corgi or the new gas council use scare mongering tactics and pressure on Government ministers and civil service to push their agenda and promote work for their memebers

We don't need annual. After all if it was really serious/important then why isn't it necessary for owner occupies are their lives not worth working about. !!

Mark Leach

9:24 AM, 16th May 2019
About A week ago

The issue with gas certificates at the start of a tenancy does need to be addressed, especially for landlords such as we are who let long term and have many tenancies that started before the new legislation came into force some 20 yrs old and still going!! This means that as we don't have the first gas certificate we cannot serve a section 21 if things go wrong.

jbw63

9:33 AM, 16th May 2019
About A week ago

I agree with Blair, maybe no certificate needed for first 3 years on new installations, and then bi-annual after that.

terry sullivan

9:43 AM, 16th May 2019
About A week ago

luba has form

Chris Daniel

22:25 PM, 17th May 2019
About A week ago

Reply to the comment left by terry sullivan at 16/05/2019 - 09:43
Terry, please elaborate, I'm 'all ears'

Michael Barnes

1:12 AM, 18th May 2019
About A week ago

Reply to the comment left by Mark Leach at 16/05/2019 - 09:24
Wrong.

The "service of GSC before tenancy started or no S21" applies only to tenancies granted on or after 1 October 2015 (see section 1 of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015).

Michael Barnes

1:16 AM, 18th May 2019
About A week ago

Reply to the comment left by terry sullivan at 16/05/2019 - 09:43
Maybe, but in this case it does appear to be what the regulations say.

And the requirement for LL to provide GSC before the T occupies has been around since 1988, so LL should have been doing it anyway.

Luke P

1:38 AM, 18th May 2019
About A week ago

Reply to the comment left by Michael Barnes at 18/05/2019 - 01:16
We (used to) often do them the same day a new tenant went in, particularly when it had expired during a vacant period (no point renewing it simply to waste) and/or on token meters with no gas on. My engineer can turn-to within a matter of hours, but this now needs to be at least a full day before.

Michael Barnes

13:22 PM, 18th May 2019
About 7 days ago

Reply to the comment left by Luke P at 18/05/2019 - 01:38
oh, poor you.

Do you not know that you can now have it done up to 2 months before expiry and maintain the anniversary date?

I used to think like you, until I realised that I would be likely to have at most 1 "unneccesary" GSC over the time I own a property by getting it done a bit earlier.

Luke P

14:12 PM, 18th May 2019
About 7 days ago

Reply to the comment left by Michael Barnes at 18/05/2019 - 13:22
Local market, Michael.

Hundreds and hundreds and hundreds of property. All benefit. All on token meters. All in debt. Thousands of hours spent dealing with energy companies to clear adds significantly to costs, so seemed easier to wait for new tenant to deal with meter in debt (they have to call them to open a new account anyway and only have to suffer one long phone call, plus they almost invariably do it day one anyway).

Not so much a problem if you’re doing just a handful periodically…


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