Gas safety certificates — a warning for landlords

Landlords will be aware that since October 2015, when landlords wish to serve a section 21 notice under a tenancy entered into after this date, they will first need to ensure that the requirements prescribed by section 21 of the Housing Act 1988 (as amended) are fulfilled.

The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“AST Regulations”) are relevant here. Regulation 2, paragraph (1) (b) requires that a tenant must be provided with a gas safety certificate. Regulation 2, paragraph 2, states that there is no requirement to give 28 days’ notice, but simply to give a copy of the relevant record to the tenant.

The Gas Safety (Installation and Use) Regulations 1998 state, at regulation 36, paragraph (6) that “Notwithstanding paragraph (5) above, every landlord shall ensure that:

1. A copy of the record made pursuant to the requirements of paragraph 3(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and
2. 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 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.”

Landlords need to be aware of the outcome of the recent appeal case of Caridon Property Ltd v Monty Shooltz. This is very worrying for landlords.

In this case, HHJ Jan Luba QC clarified the application of the Gas Safety (Installation and Use) Regulations 1998 to the service of a gas safety certificate in a manner compliant with the prescribed requirements when serving a Section 21 notice.

In delivering his judgment, the judge sent a stark message to landlords. Although only a county court decision, and so not tested in a higher court, the judge held that a landlord who failed to provide a gas safety certificate at the start of a post-1 October 2015 tenancy before the tenant moved in, cannot later serve a valid section 21 notice, at least during the period of the tenancy. The landlord does not have another chance to serve the certificate prior to serving the section 21 notice.

HHJ Luba QC’s said that paragraphs 6 and 7 of Regulation 36 were only relevant in relation to notices of gas safety given to existing tenants. When referring to the 28-day period in Regulation 2 (2) of the AST Regulations, he said “… what those words mean is that where a landlord is seeking to say he or she has complied with the variant of paragraph 6 or 7 relating to an existing tenant, then the 28 days period for compliance with the requirement to give notice to an existing tenant does not apply.”

What does this mean for landlords?

While Caridon Property Ltd v Monty Shooltz is only a County Court appeal case, this decision will have a huge impact on how a landlord can manage possession claims using section 21 notices. On the basis of this case, no section 21 notice can be served unless a landlord can prove that a gas safety certificate was served on the tenant prior to the commencement of the tenancy. Before this case, it was widely thought that a landlord could serve a section 21 notice as long as it could be proved that a gas safety certificate had been served on the tenant before a section 21 notice could be served. Landlords must therefore ensure that when commencing a new tenancy — with a new tenant — that they serve the gas safety certificate at the beginning of the tenancy to ensure that they have met the prescribed information requirements when serving a section 21 notice.

It remains to be seen if this case will be appealed, but the decision is likely in future to be relied upon by tenants challenging possession claims in similar circumstances.

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