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Is Your Rental Property Gas Safety Certificated?

If you were asked three years ago about Section 21 Housing Act 1988 notices (ie. no fault eviction notices), universal attention focused on calculating the correct notice period to provide. That was about as confusing as they got.

Since the Deregulation Act 2015 came into force (which altered the Section 21 landscape) there are now a myriad of factors which need to be considered before determining if a Section 21 Notice can be validly served.

Recently the court provided clarification on the position that one of these obstacles crystallises upon a tenant taking occupation and that breach remains irremediable throughout the term of the tenancy.

Gas Safety Regulations 1998

HHJ Luba QC (Circuit Judge and a co-author of Defending Possession Proceedings – and accordingly highly regarded in this area of law) presided over the appeal of Caridon Property Ltd v Monty Shooltz where a number of questions were put to the court concerning the interrelationship of the Gas Safety (Installation and Use) Regulations 1998 (“the GS Regs”), s.21A of the Housing Act 1988 (as amended) and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.

Whilst avoiding simply re-hashing the law, a bare summary of the Section 21 process is that unless a landlord has complied with the ‘prescribed requirements’ they are precluded from serving a Section 21 Notice.

When to supply your Certificate to your tenants

The prescribed requirements include complying with certain elements of the GS Regs:

36(6) … 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.

Thankfully, for those who do not enjoy translating legislation, the court is here to interpret for you. In this instance HHJ Luba QC has strictly interpreted the statement “… is given to any new tenant … before that tenant occupies those premises”.

Implications re Section 21 Notices

In plain English – if the tenant takes occupation of the premises, and before that moment the landlord has not provided to the tenant a current gas safety certificate, the landlord has not complied with the prescribed requirements and cannot serve a Section 21 Notice.

“But wait” (I imagine you are saying), “surely as long as I have one, even if I serve it after they move in, that is ok?”

Alas, no. One question referred to the Court was: Should a purposive reading of the regulations be applied to avoid an absolute bar on service of a Section 21 notice?

It appears that the policy makers in question who draft such materials had thought that the prescribed requirements were all suspensory in their operation. That is to say; that once a landlord had complied with the Regulations that he or she would be able to serve a Section 21 notice even if such compliance was later than had been anticipated …

… In my judgment that cannot sit appropriately with the obligation in the GS Regs for notifications to either be given or displayed prior to the taking up of a tenancy by an incoming tenant. That seems to me to have been a ‘once and for all’ obligation on a prospective landlord in relation to a prospective tenant. Once opportunity has been missed, there is in my judgment no sense in which it can be rectified. If the Minister believed that that ‘once and for all’ cut off should not debar a landlord from serving a Section 21 notice, it was open to the SoS to simply disapply those parts of Paragraphs 6 and 7 of Regulation 36 in express terms … (HHJ Luba QC – Caridon Property Ltd v Monty Shooltz)

In lay terms, once the tenant takes occupation, giving them a certificate afterwards will not fix this breach.

Of course, this is limited to those tenancies to which this legislation is applicable and, as when the rule changes surrounding tenancy deposit schemes occurred, there will be creative arguments surrounding statutory periodics and secondary terms yet to come.

Unfortunately, this situation will inevitably catch out otherwise diligent and honest landlords, who may have simply suffered an unfortunate administrative slip up.

Importance of Gas Safety Certificates

Suggesting that gas safety certificates are not in the public interest would be an exceptionally difficult argument to sustain; a brief internet search will highlight recently tragedies which may be attributable to failures to comply with gas safety requirements. Although, it is also difficult to imagine that the legislator intended for an administrative error to preclude a landlord from what is undoubtedly the most efficient method of regaining possession of their property.

Whilst this judgment only has a limited scope in influence, being a judgment of the County Court, until legislation is altered, landlords would do well to heed HHJ Luba QC’s warning and ensure they provide a copy of their certificates long before providing a copy of their keys.

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Charles Jamieson's picture

Charles was Called to the Bar in 2012 and in 2016 became a Fellow of the Chartered Institute of Legal Executives following three years of Dispute Resolution with W H Matthews & Co in the City before joining Fisher Meredith in January 2017. Prior to returning to education as a mature student Charles was a contract negotiator and broker.

Charles specialises in property disputes including Landlord & Tenant (residential and commercial), Boundary Disputes, Party Wall Act matters, Trespass, and Construction Disputes – acting for home owners, leaseholders, builders, sub-contractors, tenants and property & management agents alike. In addition to disputes, Charles will provide a bespoke advisory service before a venture of course of action is commenced, thereby allowing a party to proceed with their eyes open to certain risks. Charles is often asked to review Tenancy Agreements and procedures for Residential Landlord’s either new to the market of with an established portfolio of properties.

Charles also takes instructions in general Commercial, (Contentious) Probate, Consumer, Contracts for Goods / Services, and Debt matters.  Having trained as an Advocate, Charles is often able to provide an initial meeting to Courtroom service.

In his spare time Charles is a pro bono Community Mediator and the Staines Village Residents and Traders Association legal adviser.  He is also appointed as a Trustee for CALM Mediation, a charity focused on community mediation and restorative justice.

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