Advice for landlords regarding Gas Safety Certificates and "no fault" procedure

When granting an assured shorthold tenancy of residential accommodation, you should ensure you are aware of the obligations you are required to satisfy both at the beginning of, and throughout the duration of the tenancy, otherwise you could face serious difficulty when trying to regain possession of your property. Helen Porter, Partner in our Litigation and Dispute Resolution team, explains these responsibilities here, and reviews a recent case highlighting the impact the failure to deliver a Gas Safety Certificate to a tenant can have on the validity of notice given under section 21 of the Housing Act 1988.

The ability to recover possession of property using the “no fault” procedure under section 21 of the Housing Act 1988 remains one of the most valuable tools to landlords. This enables you to serve your tenant with 2 months notice to vacate the property (to take effect no earlier than the last day of the tenancy) without having to specify a reason for doing so.

Section 21A of the Housing Act 1988 (as amended by the Deregulation Act 2015) provides that for tenancies granted after 1^st October 2015*, a Section 21 Notice cannot be validly served on the tenant if you are in breach of a "prescribed requirement". One of these prescribed requirements is that you must have complied with any statutory obligations in respect of 'the health and safety of occupiers of dwelling-houses'.

These include the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (the "AST Regulations"). These Regulations list the need for you to provide your tenant with a gas safety certificate in compliance with the Gas Safety (Installation and Use) Regulations 1998 (the "Gas Safety Regulations"). Critically, section 36(6)(b) of the Gas Safety Regulations states that the gas certificate must be provided before the tenant occupies the premises.

Caridon Property Ltd v Shooltz

The recent County Court decision in Caridon Property Ltd v Monty Shooltz provides some unwelcome news to landlords of assured shorthold tenants who previously thought that the failure to provide a gas safety certificate at the start of a tenancy would not compromise the validity of a section 21 notice where the gas certificate was given to the tenant prior to service of the section 21 notice.

Monty Sholtz had an assured shorthold tenancy, and his landlord only provided him with a gas safety certificate 11 months after he had moved in to the premises. Mr Shooltz subsequently challenged the validity of a section 21 notice served on him by his landlord, and the Court declared the notice to be invalid because of the landlord’s failure to provide a gas safety certificate before Mr Shooltz occupied the premises. It did not matter that Mr Shooltz had been given a gas certificate before the section 21 notice was actually served.

The decision was appealed and the appeal was heard to His Honour Judge Jan Luba QC, who before becoming a judge was one of the country's pre-eminent housing barristers.  Upholding the decision and finding in favour of the tenant again, HHJ Luba decided:-

• Section 36(6)(b) of the Gas Safety Regulations must be complied with at the start of the tenancy and this was a 'once and for all' chance for the landlord to get it right.
• Any other interpretation of the AST Regulations could potentially allow landlords to let dangerous and unchecked premises which had not complied with regulations that are in place to protect tenants.

Although not biding authority, this judgment indicates the desire of the Courts to apply a strict interpretation of the AST and Gas Safety Regulations, which is not surprising given that their purpose is to ensure that tenants should be entitled to move into and live in safe premises.

If you fail to get it right when the tenancy is granted, it could mean that you have lost the ability to end the tenancy through the “no fault” Section 21 route.  This would mean you would need to rely on the grounds in Schedule 2 of the Housing Act 1988, many of which are discretionary and give you no guarantee of recovering possession.

Possible Solutions

You may be able to rectify a situation where you have not provided a gas safety certificate before your tenant occupies the premises by granting a new (replacement) tenancy.  Logic would suggest that so long as you provide a gas certificate before commencement of the new tenancy, you will have complied with the AST Regulations.  However, it may be arguable whether this satisfies the exact wording of section 36(6)(b) of the Gas Safety Regulations, because the tenant is already in occupation before the new tenancy is granted.

In any event, you would be best advised to take the following steps to preserve your rights to utilise the section 21 possession procedure:

1. Ensure that tenant(s) are provided with a gas safety certificate prior to the start of the tenancy and before the tenant moves in.
2. Keep a detailed note of the date and time of issue of the certificate.  Ideally, your tenant should sign an acknowledgement to confirm the time and date of receipt.
3. In the case where a gas safety certificate has not been served at the start of the current tenancy and a replacement tenancy is being contemplated, ensure the latest certificate is served before the replacement tenancy begins.

If you are a landlord needing legal advice regarding a tenancy notice, you can contact Helen or the Litigation team on 023 8071 7425 or email helenporter@warnergoodman.co.uk. Alternatively, you can contact Laura Blakemore for any general enquiries on 023 8071 7412 or email laurablakemore@warnergoodman.co.uk.

*NOTE – this requirement will also extend to landlords whose tenancies began before 1 October 2015, effective as of 1 October 2018.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.