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25th April 2019

Comply with your obligations at the beginning of the tenancy or lose the ability to serve a section 21 Notice!

Failure to supply a tenant with a copy of the current Gas Safety Certificate at the beginning of a Tenancy may prevent a Landlord from serving a Section 21 Notice.
Compliance with the Landlords obligations as set out in The Gas Safety (Installation and Use) Regulations 1998 as well as the Deregulation Act 2015 is vital for Landlords who want to terminate an Assured Shorthold Tenancy by way of serving Notice pursuant to s21 of the Housing Act 1988.

The recent unreported County Court decision of Trecarrell House Ltd – v - Rouncefield [2019] confirmed the position following Caridon Property Ltd – v – Shooltz [2018] where the s21 Notice was found to be invalid due to the failure to provide a copy of the gas safety certificate (GSC) to the tenant prior to the tenancy commencing and the tenant occupying the property.

The relevant law

The Gas Safety (Installation and Use) Regulations 1998 imposes two obligations on Landlords:-

  • 1) An annual Gas Safety Check must be undertaken and a copy of the GSC must be provided to each existing tenant 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
The Deregulation Act 2015 inserted a new section at 21A of the Housing Act 1988 which precludes landlords from serving a s21 Notice when they have failed to provide information relating to the following:-

  • the condition of a dwelling house or its common parts;
  • the health and safety of the occupiers of a dwelling house, or
  • the energy performance of the dwelling house.
The facts of Caridon Property Ltd – v – Shooltz (“Shooltz”) and Trecarrell House Ltd – v - Rouncefield (“Rouncefield”).

Mr Shooltz had an Assured Shorthold Tenancy. The Landlord, Caridon Property Ltd, issued possession proceedings upon the expiry of a s21 Notice. The County Court Judge held that the Notice was invalid as the landlord had not proved a copy of the GSC to the tenant until after Mr Shooltz had moved into the property.

This decision was upheld at appeal and further confirmed in Trecarrell House Ltd – v - Rouncefield.

In the Rouncefield case, the tenant occupied a flat under an assured Shorthold Tenancy. The landlord had not provided a copy of the GSC prior to the tenant moving into the property, however they had provided one prior to the service of the s21 Notice. Upon the expiry of the s21 Notice, the landlord issued possession proceedings.

Initially the County Court found in favour of the landlord, however the tenant appealed on the basis of the decision in Shooltz.

HHJ Carr allowed the appeal agreeing with the decision in Shooltz. The breach of The Gas Safety (Installation and Use) Regulations 1998 could not be remedied at a later date. HHJ Carr emphasised the importance of the tenant receiving assurances that the property is safe before they move into it.

What does this mean for landlords?

Landlords are not able to terminate an Assured Shorthold Tenancy by serving a s.21 Notice unless they have complied with all of the landlords obligations, which includes providing a copy of the GSC to the tenant before the start of the tenancy.

Landlords will still be able to rely on the service of a s8 Notice in instances where there has been a breach of the terms of the tenancy by the tenant. If, however, there has been no breach by the tenant and the landlord has failed to provide a copy of the GSC before the tenant moved into the property, the landlord may be prevented from recovering possession of their property indefinitely.

For more information please contact Suzanne Bingham on 01604 463162 or click here to email Suzanne.

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