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Gas Safety Certificates and S21 Notices

Monday, 05 March 2018

Our January blog “Residential Landlords – The Importance of Being Compliant” confirmed the importance of Landlords abiding by the prescribed requirements and pointed out that failure to do so can result in not being able to serve Section 21 notices.


In the recent appeal case of Caridon Property Ltd v Monty Shooltz, it was held that the previous gas safety record of a property needs to be served on a new tenant before they commence the tenancy, otherwise any subsequent section 21 notice served against them will be invalid. This further demonstrates the harsh consequences of failing to comply with the obligations Landlords must abide by.


The Case
In this case, the Landlord entered into an Assured Shorthold Tenancy with the Tenant but did not provide the Tenant with a gas safety certificate until 11 months after the tenancy started. District Judge Bloom dismissed the case on the basis that at the time of serving the Section 21 notice, the Landlord had not complied with his obligations.


The Landlord had to abide by the requirements prescribed in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 at paragraph 2(1)(b) and Regulations (6) and (7) of the Gas Safety (Installation and Use) Regulations 1998.


Section 36(6) Gas Safety Regulations 1998 states the Tenant must receive a copy of the gas safety record within 28 days of the check being completed. S2(2) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, however, states that providing a copy of the gas safety certificate is the requirement and that the 28 period for compliance does not apply.


The Landlord argued that 2015 Regulations disapplied any time limit and appealed the decision. At the appeal, HH Judge Luca QC stated that:


“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 Secretary of State to simply disapply those parts of Paragraphs 6 and 7 of Regulation 36 in express terms in what has become Regulation 2(2).”


In essence, HH Judge Luca QC upheld the dismissal and confirmed the requirement under S36(6) Gas Safety (Installation and Use) Regulations 1998 must be complied with.


What does this mean?
A Landlord has only one chance to provide a gas safety certificate which is at the beginning of the tenancy. Failure to do so means a Landlord is prevented from serving a Section 21 notice. Therefore, should a Landlord wish to regain possession of their property having failed to serve a gas safety certificate at the outset, they will need satisfy one of the grounds under Section 8 of the Housing Act 1988 and serve a Section 8 notice instead.


We are yet to see if this case will be appealed further but the decision is likely to have significant consequences on Landlords as although it is an appeal from a county court decision, HHJ Jan Luca QC is acknowledged as a distinguished and authoritative housing specialist.

 

Please contact a member of the Property Dispute Resolution team if you require assistance regarding a dispute that has arisen in relation to the boundary of your property - PDR@daviesandpartners.com

 

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