Why failing to issue a gas safety certificate to a tenant could stop you from getting your property back

A recent High Court case should serve as a warning to landlords who fail to provide tenants with gas safety certificates before moving in.

Under the Gas Safety (Installation and Use) Regulations 1998, landlords must provide their prospective tenants with an up to date gas safety certificate before they move in, and give existing tenants the property’s updated gas safety certificate following each annual check.

However, in a number of recent cases, the County Court has determined that a landlord who fails to provide a gas safety certificate to their prospective tenants before those tenants have moved into occupation cannot later terminate that tenancy by serving a notice under section 21 of the Housing Act 1988.

Whilst landlords may still be entitled to terminate by serving a notice under section 8 of the Housing Act 1988, doing so requires some form of wrongdoing by the tenant (i.e. a persistent failure to pay the rent on time) and often there may not be any such wrongdoing, thus potentially preventing landlords from recovering vacant possession of their premises indefinitely.

The Facts

In Trecarrell House, the tenant occupied a self-contained residential flat in a domestic property. Hot water and heating was provided to the flat from a boiler outside of the tenant’s flat in another part of the property. For whatever reason, the landlord did not serve the tenant with a copy of the property’s gas safety certificate but did so prior to the service of the section 21 notice.

The Decision

At first instance the Deputy District Judge found in favour of the landlord’s possession claim stating; “it cannot have been the case, in my view, that those who drafted both the primary legislation and the statutory instruments meant it to be the case that if a landlord failed to comply at the outset of a tenancy he was unable then to remedy any breach.”

The tenant then applied to appeal that decision on the basis of another County Court decision, Caridon Property Ltd v Monty Shooltz. In that case, the Court decided in the tenant’s favour, determining that the section 21 notice served on Mr Shooltz by the landlord some 11 months after the tenant had moved into occupation of the property invalidated the landlord’s section 21 notice.

In allowing the appeal HHJ Carr found that the landlord’s failure to have provided the tenant with the gas safety certificate before he had moved into occupation of the flat invalidated the effectiveness of the section 21 notice that had been served on the tenant.

Points to Note

Landlords only have one opportunity to serve gas safety certificates on their tenants; before the commencement of their tenancies and before their tenants have moved in, otherwise they will be prevented from serving a section 21 notice for possession. Landlords should record the date and time they serve their tenants with the certificate and ideally obtain a signed acknowledgement of this from their tenants.

We understand that the decision made in Trecarrell House Ltd will now be referred to the Court of Appeal.

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