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Timely service of Gas Safety Certificates essential for new ASTs

View profile for Sarah Whitehurst
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Since the introduction of new legislation and regulations in respect of Assured Shorthold Tenancy Agreements (ASTs) in England as of 1 October 2015, landlords have had to comply with a series of prescribed requirements which must be satisfied at the commencement of an AST in order that the landlord can serve a “no fault Section 21 Notice” on the tenant to bring ASTs to an end.  Whilst these prescribed requirements (set out in more detail in my blog back in 2015) have only affected ASTs which were entered into on or after 1 October 2015, by 1 October 2018, the legislation and regulations will become retrospective and will apply to ALL ASTs.  Prudent landlords will be reviewing their portfolio and taking steps to ensure that all of their tenancies comply with the prescribed requirements from 1 October 2018.

Gas Safety

One of the prescribed requirements is that the landlord must provide the tenant with a Gas Safety Certificate in accordance with the Gas Safety (Installation and Use) Regulations 1998.  These regulations specifically say that the Gas Safety Certificate must be provided to the tenant before the commencement of the AST or the tenant going into occupation of the property, whichever is the earliest.

Following the introduction of regulations affecting tenancies after 1 October 2015, there was some uncertainty as to whether a failure on the landlord’s part to provide a Gas Safety Certificate before the tenant occupied the property would prevent a landlord from serving a Section 21 Notice or whether the landlord could provide the tenant with a copy of the Gas Safety Certificate to the tenant, albeit late, and then serve a Section 21 Notice on the basis that the tenant had received a copy of the Gas Safety Certificate.  Section 21A of the Housing Act 1988 (as amended) itself did not provide much guidance; it simply stated that “a notice under sub-section (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”.  Upon a literal reading of Section 21A, as long as the prescribed information was served on the tenant before a Section 21 Notice was served, the Section 21 Notice would be valid.

However, there have been a couple of unreported cases involving the late service of a Gas Safety Certificate and whether or not this invalidated a Section 21 Notice.  The most recent case Caridon Property –v- Monty Shooltz brought very unwelcome news to landlords who previously thought that a failure to provide a Gas Safety Certificate to the tenant at the start of an AST would not prevent a valid Section 21 Notice being served on the tenant as long as the Gas Safety Certificate was given to the tenant prior to the Section 21 Notice being served.  The appeal judge held that because the Gas Safety Certificate was not provided to the tenant before the tenant entered into occupation of the property in accordance with the Gas Regulations, the Section 21 Notice was invalid and it did not matter that the tenant had been provided a Gas Safety Certificate before the Section 21 Notice was actually served.

Although the Caridon judgment is not a binding authority on all county courts, the judge who reached this decision is, in fact, an expert in housing law and does cause concern; until such a time as the AST regulations are updated to confirm that this judgment does not reflect Parliament’s intention, it is open to tenants to dispute the validity of a landlord’s Section 21 Notice. 

A further concern is the effect this judgment may have on those tenancies granted prior to 1 October 2015 (which did not have to comply with the prescribed requirements) as landlords are unlikely to have provided the tenant with a Gas Safety Certificate at the start of the tenancy and find themselves in a precarious position post 1 October 2018.  The judgment could mean that in respect of ASTs entered into before 1 October 2015, if there is a gas supply at the property and the landlord did not provide the tenant with a Gas Safety Certificate before the tenant went into occupation, the landlord could be precluded from serving a Section 21 notice when the regulations apply to all ASTS in October.

The Way Forward

It would be prudent for landlords to either include copies of the required documents (EPC, Gas Safety Certificate, the most recent copy of the How to Rent Guide and Deposit Protection Information) within the AST itself or to have a checklist for ASTs to ensure that the landlord has complied with all of its legal requirements before the start of the AST (or the tenant goes into occupation of the premises) and to have the tenant sign a copy of the checklist to confirm that they have received the necessary information and documentation.

However, if the landlord chooses to provide the prescribed information and documentation, it is important that thorough records and copies of what has been provided to the tenant, and when, are kept in order to satisfy the court that the landlord has complied with its legal requirements.