Tenant refusing gas safety check

Reply to the comment left by "Romain " at "11/09/2013 - 15:46":

Roman,
I can hear undertones of inexperience in your questions so I will not indulge you in many answers.

However, if you wish to take the expensive route by inviting action against you by solicitors then please carry on.

When you a faced with legal action by a solicitor it is often a case of weighing up how expensive it might get.

In the eyes of the law sending a tenant a letter is reasonable action. Entering the premises when you are being refused access by the tenant is not. Hence the case against the letting agent which I quoted earlier.

I hope you have a lot of savings and i have six words of advice for you as follows....

Good luck
Good luck
Good luck

Reply to the comment left by " " at "11/09/2013 - 15:57":

Well I asked to simple question for everyone's benefitsand you do not seem willing to provide a reply.
Solicitors routinely go fishing by sending threatening letters, this doesn't mean anything. So we still don't know what you meant by agent "had to pay compensation".

Certainly I do not see a court awarding compensation because a landlord peacefully gained access to carry out his legal duty to the full benefit of the tenant.

So I stand by my previous advice that the landlord must be more directive and clearly state in his notice that he _will_ gain access with his key in order to inspect the property and carry out the GSC and that the tenant needs not be present.
Only if the tenant explicitly refuses that course of action should he not proceed for his own protection. Obviously it is in any case out of the question to force entry if the tenant is present at the property and doesn't let the landlord him or asks him to leave.

First of all, the very fact that you are advising your agent instead of your agent adivsing you what to do in this situation should be of equal concern.

But more importantly, landlords are required by LAW to ensure that they have a gas safety certificate in place that shows the gas appliances have been tested and are safe.

By law Landlords have right of entry to the property to carry out inspections and repairs under the Rent Act 1977 and the Housing Act 1988.

Landlords also may enter the properties under the Landlord and Tenant Act 1985 when the Landlord is obliged by Section 11 of that Act to carry out essential repairs. The Landlord's right to make reasonable visits to check the condition of the property is also normally included in the agreement with the Tenant so check your agreement to ensure the relevant clauses are there.

Secondly, you should have a clause in your tenancy agreement that allows you access in the even that the tenant falls into arrears.

So, you ARE within your rights as a landlord to enter the property to perform a gas safety check providing you have made it clear to the tenant of your intention & given them sufficient notice.

And lastly, yes you are still liable and are now breaking the law for NOT having a valid safety certificate. Whilst a court may be lenient, in the event of your tenant becoming sick, hospitalised or worse dead as a result of Carbon Monoxide poisoning and despite the fact your tenant said no to your engineers visits, you and your agent can still be held accountable & prosecuted.

I would suggest you review your tenancy agreement to ensure it is legal and contains the correct clauses.

Then I would send a very clear letter (as suggested above) of your intent to visit the property on 'x' date for the purposes of carrying out the gas safety certificate which is required by law & in the event that the tenant cannot be available you will be entering the property as per clause xxxx of the agreement. (Always best to provide a copy). If however, the tenant wishes to be present please contact you by email as a matter of urgency to arrange an alternative date. I woluld also add that, "as you are aware, I have/my agent has made several attempts to arrange a suitable appointment for the purpose of undertaking a gas safety certificate that is not only a legal requirement but is paramount to ensure the on going safety of you, the tenant. Should you contniue to persist in preventing access to the property for the purposes of carrying out a gas safety certificate on 'x' you will be in further breach of the tenancy and court action WILL follow.

This is NOT harassment. You are quite simply trying to satisfy your obligations in regards to a legal requirement.

However, if the tenant emails you back and says NO or won't let you in when you turn up as per the arrangement in your letter then you will need to go to court using a section 8 notice.

Do not persist in trying to barge in and make sure you keep all correspondence, its all in writing.

If the tenant is out when you turn up, just let yourself in with the key & make sure you leave a copy of the gas safety in the property. Then follow up with a letter confirming the gas safety certificate was carried out on xxx date, reafirming the fact a copy was left on the table (or wherever for their records & a further copy has been attached to this letter for their records.

if you find yourself completely blocked from entering the property I would then follow up immediately with a LBA allowing no more than 14 days for the tenant to contact you with a suitable time to visit the property and if you do not hear you will be proceeding with court action wthout any further warning.

The previous posters comments about an agency paying out compensation is really not clear or sufficiently helpful. What was described is not sufficient grounds for harassment so i suspect there was alot more to it. Either that or the agency did not know what they should or should not be doing.

Check your agreement make sure it is compliant & make sure you understand your tenancy agreement.

Lauren,
Unfortunately much of what you have suggested all falls flat on its face when the tenant has refused access.

Litigation is one option but its lengthy and expensive and time consuming and it not a direct solution to getting access quickly under these circumstances. It is naive to think otherwise.

Please refer to Mary Latham Breach of Quiet Enjoyment in other posts to understand the implications of gaining access without the tenants permission.

So please let me talk from experience as follows.........

The landlord commits no offence for not undertaking a gas safety check if the tenant is refusing access. Providing the tenant has been informed and the landlord has tried all reasonable steps.

I know, as I was threatened by a solicitor for exactly this reason but no case could be brought against me because I showed signed letters of trying to gain access etc. At the time the solicitor wrote to me the Gas Safe certificate had already expired and they quoted it in their letter.

I would like to show you the letter if you have time.

Even if you give notice and then tenant refuses access there is not a lot you can do to remedy the problem quickly.

One last point. as a landlord you should always try to avoid and not encourage litigation as its time consuming and expensive.

P.S Lauren, you've herd the joke about the sailer who's applying for a job. Every time the interviewer tells him hes to pretend hes being blown against the rocks with more and more wind he keeps quoting "I'd turn hard into the wind and give more sail" . When asked where he's getting all that sail from he replies "the same place you're getting all that wind!"

So, you're blowing a hard gale with quotes of litigation.

Reply to the comment left by " " at "12/09/2013 - 20:50":

Richard, in all sincerity let me thank you for your response & I am glad you have taken the time to write back and questioned my advice as it has reminded me that I need to take more care when responding to future posts. I can see that what I wrote, in an effort to assist, advise and reassure the OP was not at all clear and in that respect I have let myself down.

So in an attempt not to be misunderstood again, I have addressed your comments each in turn, with what I hope is a clearer reply that is more easily understood in the manner in which it is intended.

"Unfortunately much of what you have suggested all falls flat on its face when the tenant has refused access"

- I do not understand this comment based on what I thought I wrote. Why does my advice fall flat on its face? Perhaps, after reading this reply to your comments in full, I will do a better job in conveying what I actually meant & thought I had written. If not, perhaps you would explain in more detail so I understand.

"Litigation is one option but its lengthy and expensive and time consuming and it not a direct solution to getting access quickly under these circumstances. It is naive to think otherwise."

- Agreed, litigation can be expensive & at times lengthy etc, but in the event a tenant continues to refuse access and prevents a landlord from undertaking a gas safety certificate, is it acceptable to you as a responsible landlord to do just do nothing & take the risk that all will be ok?

Bear in mind that as a landlord you have a duty of care to ensure your tenant is kept safe whilst living in your property (even if the tenant is awkward and doesn’t pay their rent).

Now, Part 36(10) of The Gas Safety Regs states;

“(10) Nothing done or agreed to be done by a tenant of relevant premises or by any other person in lawful occupation of them in relation to the maintenance or checking of a relevant gas fitting or flue in the premises (other than one in part of premises occupied for non-residential purposes) shall be taken into account in determining whether a landlord has discharged his obligations under this regulation (except in so far as it relates to access to that gas fitting or flue for the purposes of such maintenance or checking)”.

This makes it very clear that the landlord cannot 'transfer' his liability/responsibility onto a tenant under any circumstances but you will note the exception in brackets. This is addressed and made clearer in Part 39

Exception as to liability
39. No person shall be guilty of an offence by reason of contravention of regulation 3(2) or (6), 5(1), 7(3), 15, 16(2) or (3), 17(1), 27(5), 30 (insofar as it relates to the installation of a gas fire, other gas space heater or a gas water heater of more than 14 kilowatt gross heat input), 33(1), 35 or 36 of these Regulations in any case in which he can show that he took all reasonable steps to prevent that contravention.
Let me reiterate the part about taking “all reasonable steps”

Okay, now lets clarify that further by following up what the HSE state on their website which can be found under the headng "How far do I need to go if the tenant prevents access for a gas safety check?":-

A landlord has to show that they took all reasonable steps to comply with the law. HSE recommends the following best practice in these circumstances and strongly advises that a record be kept of all correspondence with the tenants:
• leave the tenant a notice stating that an attempt was made to complete the gas safety check and provide your contact details;
• write to the tenant explaining that a safety check is a legal requirement and that it is for the tenants own safety. Give the tenant the opportunity to arrange their own appointment;
• HSE inspectors will look for at least three attempts to complete the gas safety check, including the above suggestions; however the approach will need to be appropriate to each circumstance. It would ultimately be for a court to decide if the action taken was reasonable depending upon the individual circumstances.
• It is a good idea to include arrangements for access in the tenancy agreement.

So lets look at it in more detail & try to put it into context.

It may be that upon following the above steps recommended above by the HSE, the HSE themselves may choose not to prosecute BUT you will also note that point 3 clearly states not only would a landlords approach need to be appropriate to each circumstance, meaning that they will take into account the individual circumstances in regards to the action you have taken in comparison to the situation, they also go on to say that ultimately it is for a court to decide if the action taken was reasonable.

So again, bearing in mind, failing to comply with the regulations is a criminal offence is it really acceptable to you to do nothing and risk a prosecution for non-compliance and a Judge determining that you have NOT taken ALL reasonable steps.

So what other choice do you have other than take proper action as dictated by the relevant Act and governing law applicable? Especially when you take into account the
The Corporate Manslaughter and Homicide Act 2007 which came into force on 1 April 2008. This Act introduced a new offence of Corporate Manslaughter (Corporate Homicide in Scotland) which applies to organisations that cause the death of an individual by way of a gross breach of their Duty of Care.

The Duty of Care is the same as that set out by the common law of negligence but for lettings agents or corporate landlords would certainly include their basic requirements to ensure that a property is safe and that a landlord’s Gas Safety Certificate has been obtained.

The legislation is very clear and whilst it does make provision for mitigating circumstances providing the landlord has taken all reasonable steps to ensure he meets the legal requirements it still does not absolve him from his legal responsibility, so in the event a tenant continues to prevent and block access, there comes a time when a responsible landlord should serve a Section 8 notice or apply to the courts for an injunction.

"Please refer to Mary Latham Breach of Quiet Enjoyment in other posts to understand the implications of gaining access without the tenants permission."

- Thanks, but I am guessing you have not understood the advice I gave. My fault I am sure as I perhaps should have waited when I had more time to respond in a clearer manner, BUT at no time did I advise the 'OP' in this case to access the property by force or using keys without consent.

If my suggested wording has been misinterpreted then please let me reiterate that without consent a landlord may not access the property HOWEVER, a landlord CAN write to a tenant and inform him that a gas safety certificate is a legal requirement and a gas engineer will call at the property on xxxx date. If the tenant cannot be present, the landlord/gas safety engineer may enter the property in his absence using keys, unless the tenant objects or wishes to arrange an alternative date.

In the event the tenant still refuses, the landlord/landlords agents should make the tenant aware of the consequences and intended action. Thus, exhausting all avenues and incorporating due diligence.

.
"So please let me talk from experience as follows………

The landlord commits no offence for not undertaking a gas safety check if the tenant is refusing access. Providing the tenant has been informed and the landlord has tried all reasonable steps. "

- Yes exactly, the clue is the word ALL reasonable steps, a landlord must keep evidence which can be used in his defence but ALL reasonable steps include serving notice and if necessary obtaining an injunction/eviction.

Let me put it to you another way. You have been repeatedly refused access by the tenant to carry out the Gas Safety and so you a). give up or b) continue to write, text, phone tenant requesting access. Time passes and before you know it the previous certificate expired 6 months ago. You then find out the tenant has died due to carbon monoxide poisoning due to a faulty appliance which could have been avoided had you taken ALL steps to ensure the safety check was carried out.

What do you think will happen to you. You will, regardless, end up facing a judge & have the opportunity to present your defence, which will of course consist of letters that you sent to the tenant requesting access & presumably proof he refused. .

Now, when the Judge questions you as to why, after the aforementioned 3 attempts (as advised by the HSE) it was clear to you the tenant was being obstinate & refusing you access did you not make the decision to take further action in seeking legal help by obtaining an injunction or serving a section 8 notice, what will your answer be? It was the tenants fault for not letting me in Sir & I couldn't be bothered to serve notice or get legal advice or apply to the court for an injunction because I don't have the time, plus litigation takes too long, oh and its expensive. Do you really think you will be excused???? Do you want to take the risk he will interpret ALL reasonable steps as you do and this excuses you from both legal action and legal consequences?

I would hope that the above extracts from the regulations and HSE advice clarifies that whilst you may escape prosecution from the HSE if you have letters detailing your attempts to carry out a gas safety certificate it does not guarantee exemption by the courts.

"I know, as I was threatened by a solicitor for exactly this reason but no case could be brought against me because I showed signed letters of trying to gain access etc. At the time the solicitor wrote to me the Gas Safe certificate had already expired and they quoted it in their letter."

- Really, are you really sure NO case could be brought against under any circumstances? Or was it a case that the tenant was advised by his solicitor that as he wasn't dead and not ill and to continue with litigation against you would be expensive and not in his best interest as there was no guarantee he would be awarded compensation. Plus, consideration needs to be given as to whether or not the tenant had left or was still in occupation, the overall circumstances of the tenants situation and what the tenant hoped to gain by sending you the letter in the first place as to why no further action was brought against you. How long was the lapse in certification?

"I would like to show you the letter if you have time."

- Of course please do as that would give me a better understanding as to the context of the letter and what the expecting 'gain/outcome' was from the tenants perspective. My personal email address is lauren.field@live.co.uk please feel free to email me a copy so we can discuss it further.

"Even if you give notice and then tenant refuses access there is not a lot you can do to remedy the problem quickly."

- Of course it's not easy and I never suggested it was quick, the point is you can't do nothing and you can't continue to do nothing. It is still your responsibility and like it or not it does not go away. You either lucky enough to avoid prosecution or you not and you get caught out.

"One last point. as a landlord you should always try to avoid and not encourage litigation as its time consuming and expensive."

- Yes but sometimes you have no choice as Tenants rights are protected by law (as are landlords) and unfortunately sometimes the only course of action left available to you as a landlord is to seek legal help & take action through the courts. I'm sorry, I know you don't like the word litigation but as a landlord you have to be aware of ALL the risks.

In addition, the above sentence implies that you think I have promoted litigation first and foremost without taking into consideration the circumstances. I actually did not suggest the OP or anyone else jump straight to bringing court action against your tenant, I tried to advise possible wording for a final letter in regards to gaining access to carry out the inspection and if that failed I advised on a LBA clearly pointing out to the tenant of the legal requirements and potential consequences in the event of court action.

As I understood it, the circumstances in this case, is that the tenant is also in rent arrears as well as refusing the landlord access for the Gas Safety, hence the approach I suggested, which for clarification purposes did not involve entering the property without permission. .

"P.S Lauren, you’ve herd the joke about the sailer who’s applying for a job. Every time the interviewer tells him hes to pretend hes being blown against the rocks with more and more wind he keeps quoting “I’d turn hard into the wind and give more sail” . When asked where he’s getting all that sail from he replies “the same place you’re getting all that wind!”

So, you’re blowing a hard gale with quotes of litigation"

Actually, no I have not heard the joke but thanks you have made me smile!

I can only try harder next time to ensure my post is clear enough and that my intentions are understood and any advice I was give is unambiguous.

Sadly, many letting agents and landlords are naive when it comes to really understanding what is required from them, what is necessary and what is due diligence. As a landlord or agent you are in a position of trust and are deemed to be in a position to ensure that you understand the law, act accordingly or have the means to gain representation of someone who does understand the law & explains it to you so you do understand and act accordingly. Landlord and tenant law is complex and changes remarkably quickly. Some of it is open to interpretation, some of it not.

In general, I think Richard, the mistake I made earlier is writing too hastily and not ensuring my sentences were clear enough, hence you not getting the gist of what I meant maybe.

But in conclusion, the law is clear in regards to landlords gas safety certificates. Landlords and agents have no defence to non compliance with the regulations. There may be instances where the HSE decides not to prosecute ( e.g where tenants have refused access) but that does not prevent a court from prosecuting and without mitigating circumstances a landlord must comply even if it means he has to eventually follow through with court action.

Reply to the comment left by "lauren field" at "13/09/2013 - 01:35":

Superb post Lauren, very clear now, thank you 🙂

Reply to the comment left by "lauren field" at "13/09/2013 - 01:35":

Hi Lauren,
Haha! you are full of bluster 🙂 Your rhetoric is well meant I am sure.

In my case the tenant was claiming to be ill and suffering from Carbon Monoxide poisoning. This was quoted in the solicitors letter.

As I said before, I sent the solicitor copies of the letters (more than 3) requiring access before the gas certificate expired and after it expired and they took no further action.

I was not suggesting giving up I was simply indicating how much you need to do to take reasonable steps and avoid claims of negligence.

You quote about courts but the case will not reach the courts if the tenant is refusing access.

A solicitor will look for actions of negligence but there can be no case for negligence if a tenant is claiming to be poisoned from a boiler in a property which he is refusing access to. In other words you cant have your cake and eat it.

Therefore, quotes about how I can use the law to gain access is a nonsense under these circumstances as such action is lengthy and expensive.

So. providing the landlord takes all reasonable steps to comply with the law then he has fulfilled his duty and reasonable steps under these circumstances do not require that you break the tenants request for non-access.

Additionally the HSE are also full of bluster as are the relevant departments a the Councils as they will tell you to write letters as you have quoted above and that's exactly what the council said to me at the time.

P. S, the sailor actually said "I'd turn hard astern and give more sail"

Reply to the comment left by "Richard Kent " at "13/09/2013 - 08:55":

Richard

I think you are Lauren are saying the same thing aren't you?

Reply to the comment left by "Mark Alexander" at "13/09/2013 - 09:09":

@Mark,

I can see some common ground appearing now she has done some research on this subject 🙂

Disagrees on Refusing access=>Gaining access without tenants agreement=>How this leads to Breach of Quiet Enjoyment/ Harassment etc.

Reply to the comment left by "Richard Kent " at "13/09/2013 - 09:28":

From a complete outsiders perspective Richard I'm not reading the same things into Lauren's posts as you obviously are.

I have no idea who Lauren is but I can tell from her comments that she knows what she's talking about and I very much doubt that she had to do much research at all, save perhaps to look up the paragraphs to copy/paste into her replies to you.

It is quite clear to me that you, Lauren and Mary Latham all agree that a landlord can not gain entry without a court order if a tenant refuses access.