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    Gas Safety Certificates, not just a formality

    Summary

    Head of Property Dispute Resolution, Leon Golstein, discusses the importance of Gas Safety Certificates in Assured Shorthold Tenancies.

    The Court of Appeal judgment, published last week, in Trecarrell House Limited v Rouncefield has reversed a small, but hugely significant, point of law which had been wrongly decided at first instance by the County Court, in that case and, in another widely published 2018 decision on the same point, in Caridon Properties v Shooltz [2018 WL]. The decision being appealed against was this; a landlord who failed to serve a valid Gas Safety Certificate on a tenant prior to the start of an Assured Shorthold Tenancy, or a landlord of an existing Assured Shorthold Tenant who failed to update that Gas Safety Certificate within the 12 months required under the safety regulations, would permanently lose their right to recover possession of that property on normal Section 21 grounds.  Prior to this appeal, the unintended consequence of the prescribed regulations was thought to be that a landlord who failed to serve a Gas Safety Record at all,  or on time, would thereafter be stuck with his Shorthold tenant, potentially without limit, until such time as the tenant left of his or her own accord, or until a blame ground for possession arose under Section 8 of the Housing Act.

    The significance of those earlier decisions are obvious. For landlords, the main benefit of an Assured Shorthold Tenancy under the Housing Act 1988, has always been the guarantee of possession at the end of the tenancy term. Any claim for possession validly brought by a landlord under Section 21 after the expiry of the tenancy and the mandatory two month notice required by Section 21, will always succeed, irrespective of any other issues claims or cross-claims there may be between landlord and tenant.

    Over the years, that freedom has been modified to create pre-conditions for the service of a valid Section 21 notice – essentially providing that notice cannot be validly given unless, or until, certain other landlord duties have been met. These include the provision of tenancy deposit information, gas safety test certificates, energy performance certificates, and tenant information booklets. The gas regulations are drafted with its own time limits, in a way that makes it mandatory to provide a prospective tenant with a valid gas certificate before the tenant even occupies the property, as well as the annual update certificates on time thereafter.

    Mrs Rouncefield was not given a gas certificate before moving into her tenancy, and she was not given a Gas Safety Certificate for a further 9 months after that. Then, the landlord then missed the anniversary inspection by 2 months. When the landlord sought to terminate her tenancy, she successfully defeated the claim and was allowed to remain. Following the widely reported 2018 decision in Caridon Properties v Shooltz, the County Court Judge held that the requirement to give the Gas Safety Certificate before the tenant moved in was mandatory, and the very essence of the tenant protection. The requirement was time-critical, and missing it at the start of the tenancy could never be corrected thereafter - because that would defeat the whole purpose of the regulations (a safe property) and render the regulation toothless. The Court of Appeal has now disagreed and reversed the finding, with one Judge dissenting. It has ruled that the embargo on the service of a valid Section 21 notice only lasts for so long as the landlord remains in breach of the duty to give either a prospective tenant their first Gas Safety Record, or an existing tenant their next Gas Safety Record. Self-evidently, any notice served on a tenant when the landlord is in breach remains ineffective and invalid but that can be corrected by late service when the landlord has corrected his default. That lateness no longer blocks permanently, the landlord’s entitlement to serve notice and recover possession on Section 21 grounds.

    Should you have any questions regarding the above information, or need any property disputes related legal advice, please get in contact with Seddons’ Head of Property Disputes, Leon Golstein, on 020 7725 8086 at leon.golstein@seddons.co.uk.

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