Warning To Landlords/Agents – Gas Safety CertificatesPublished on: 16 May 2018
Landlords are already aware of regulations which require that for all Assured Shorthold Tenancies (AST) entered into after 1 October 2015 certain prescribed documents must be served upon the tenant. These include the “How to Rent” Guide, the EPC and Gas Safety Certificate, the Deposit Certificate and Prescribed Information*.
The Gas Safety Regulations 1998** specify that a copy of the Gas Safety Certificate must be given to an existing tenant within 28 days of the inspection, and to any new tenant before the tenant occupies the premises S36(6)(b).
On 2 February 2018, in Caridon Property Ltd v Monty Shooltz, HHJ Luba QC decided that if the Gas Safety Certificate was not given to the tenant before they took up occupation of the premises, this amounts to a breach of the regulations which cannot be rectified.
What are the implications of this decision?
This effectively means that, for tenancies created after 1 October 2015, a landlord cannot serve a valid Notice seeking possession under Section 21 HA 1988 unless a Gas Safety Certificate was served before the tenant took up occupation.
If there are no other grounds for possession (for example rent arrears) the landlord cannot recover possession at the end of the fixed term.
What options are available to landlords?
Landlords could try to avoid the implications of this decision by persuading the tenant to enter into a new AST and make sure the Gas Safety Certificate (and other prescribed documents) is properly served before the new tenancy begins. This option depends on the tenant’s co-operation which cannot be guaranteed.
An alternative is to serve the Gas Safety Certificate after the fixed term has expired, before a new statutory periodic tenancy arises, but there is no guarantee a court will be persuaded that the regulations have been complied with.
This decision is going to have significant implications; tenants may well try to use it as a means to defend a claim for possession. The position will need to be clarified by a Court of Appeal decision, or new legislation.
In the meantime all landlords should ensure they take steps to serve the tenant with the prescribed documents before they enter into occupation of the premises, and obtain a receipt signed by the tenant as they have only once chance to comply.
*The Assured Shorthold tenancy Notices and Prescribed Requirements (England) Regulations 2015
** The Gas Safety (Installation and Use) Regulations 1998