Invalid Section 21 notices and Gas Safety Certificates – landlords beware
A London County Court recently decided that a failure to serve a gas certificate on a tenant was an absolute bar to the landlord recovering possession under the no fault regime in the Housing Act 1988.
The parties to the case were Caridon Property Limited (landlord) and Mr Monty Shooltz who had an assured shorthold tenancy.
Mr Shooltz was served with a Section 21 notice by his landlord; this is a notice under the Housing Act 1988 stating that the landlord requires possession. The landlord issued possession proceedings against Mr Shooltz on the expiry of the Section 21 notice and at the possession hearing the District Judge decided that because a gas safety certificate was only served on Mr Shooltz for the first time some 11 months after the tenancy had begun, this meant that a prescribed requirement of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (the "AST Regulations") had not been compiled with and thus that the landlord's Section 21 notice was invalid.
S21A of the Housing Act says that a notice cannot be served at a time when the landlord is in breach of a prescribed requirement; these requirements are currently set out in the AST Regulations which state that the landlord must provide the tenant with a copy of:
- an energy performance certificate free of charge;
- a gas safety certificate, in compliance with ‘Gas Safety Regulations’
- the current version of the ‘How to rent: The checklist for renting in England’ booklet produced by the Ministry of Housing, Communities & Local Government.
The Landlord appealed and the Judge upheld the County Court decision saying that the Gas Safety Regulations must be compiled 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 premises which had not compiled with regulations that are in place to protect tenants.
This case has serious implications for landlords. If this court decision is followed by other Judges then landlords who fail to comply at the start of the tenancy with the prescribed requirements, may find that they have lost for all time the ability to end the tenancy through the 'no fault' route providing a complete defence to any possession proceedings based on a section 21 notice.
It is therefore of paramount importance that landlords review and update their procedures and systems to ensure that where relevant gas safety certificates are being issued before tenancies are entered into and before occupation to reduce the chances of this important step being overlooked.
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Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.