A case heard in the Central London County Court recently has raised some concern among Solicitors who act for landlords in residential repossession hearings.
The case of Caridon Property Ltd v Monty Shooltz was heard on 02 February 2018. It was an appeal to a Circuit Judge and remains unreported (and notably does not create a binding precedent). The first instance decision was that a notice served under section 21 of the Housing Act 1988 was not valid as the landlord had not provided a gas safety certificate prior to the tenant beginning occupation of the Property.
Section 21A of the Housing Act 1988 requires the Landlord to comply with prescribed requirements before they can serve a Section 21 notice. The prescribed requirements in relation to the Gas Safety certificate are set out within regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 and Regulation 36 (6) of the Gas Safety (Installation and Use) Regulations 1993.
Section 21A Housing Act 1988 (as amended) states:
(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.
Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 states:
2.—(1) Subject to paragraph (2), the requirements prescribed (1) for the purposes of section 21A of the Act are the requirements contained in—
(a) (….), and
(b) paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998(3) (requirement to provide tenant with a gas safety certificate).
(2) For the purposes of section 21A of the Act, the requirement prescribed by paragraph (1)(b) is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply.
The wording of Regulation 36 (6) of the Gas Safety (Installation and Use) Regulations 1993 is as follows:
(6) Notwithstanding paragraph (5) above, every landlord shall ensure that—
(a) 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
(b) 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.
Regulation 36 (6)(b) is quite explicit in requiring the landlord to ensure that a copy of the last record made is served on any new tenant “before that tenant occupies those premises”. Regulation 2 seeks to dis-apply some of Regulation 36, particularly the 28 day period in Regulation 36 (6)(a) but is silent on 36 (6)(b).
The question that the Court had to determine was whether Regulation 2 also dis-applied the time limits set out in Regulation 36 (6)(b) and whether failure to comply with 36 (6)(b) – the requirement to give the tenant a copy of the last gas safety certificate prior to occupation of the premises – applied an absolute bar on service of a Section 21 notice.
The decision was upheld on the basis that the Regulation 2 did not dis-apply the requirement contained at Regulation 36(6)(b), the Landlord was still required to give a copy of the gas safety certificate to the tenant “before that tenant occupies those premises”. The court held that once the opportunity to serve the notice had been missed, it could not be rectified.
What should be taken from this, and prove particularly concerning to Landlords, is the importance of getting service, and evidence of service, of the prescribed information correct. The case makes it clear that the gas safety certificate must be provided to prospective tenants prior to their occupation at the Property. If a Landlord has not done so, they will not be able to rectify this later on.
It is important to note that the requirements only apply for post-01 October 2015 tenancies for the time being. From 01 October 2018, the requirements relation to prescribed information will be rolled out across all tenancies and it remains to be seen whether the issues described in this case will prove problematic for pre-October 2015 tenancies too.
Should you require advice about residential possession proceedings, please do not hesitate to contact our Landlord & Tenant team on 01206 700113 or [email protected].
Credit – blog post written by Lawrence Adams.