03 July, 2020
The Court of Appeal has ruled that a landlord may serve a section 21 Notice for Possession even when they had failed to provide a Gas Safety Certificate to the tenant at the outset of the tenancy.
A Notice under section 21 of the Housing Act 1988 is a Notice for Possession of a property on a no-fault basis. In order to validly serve a Notice under this section, the landlord must be able to show that (s)he has complied with the prescribed requirements, that is: -
It is the Gas Safety Certificate requirement which often causes the most difficulty. Whilst the "How to Rent" Guide and Energy Performance Certificate can be provided at any point up to and including with the s21 Notice, the Gas Safety Certificate must be served prior to the commencement of the tenancy and cannot be retrospectively complied with.
In this case, the landlord had obtained a Gas Safety Certificate, but had failed to provide one to the tenant, or display a copy, at the start of the tenancy. The County Court decided that as a result, the landlord was in breach of the prescribed requirements and the Notice was not valid. The landlord appealed.
By a majority, the Court of Appeal decided that provided a valid Gas Safety Certificate was in place at the commencement of the tenancy, and there remains a valid Gas Safety Certificate in place to be served, for the purposes of serving a valid Notice under s21, the landlord will no longer be in breach if (s)he serves the Certificate prior to serving the Notice.
The judgment leaves us with two questions, however, which will no doubt be the source of dispute for some time; firstly, what if the landlord has not completed a gas safety check prior to the tenant taking up residency? Secondly, what if the landlord has failed to do the annual gas safety check after the tenant has moved in? Can either of these situations be remedied or overcome?
This is excellent news for landlords. The Court has recognised that the system as it was, meant that a simple administrative oversight, could effectively cause an Assured Shorthold Tenancy to become a fully assured tenancy with security of tenure for a tenant. However, given the question marks raised over a failure to do a gas safety check either before the tenant takes up occupancy, or after, it is vital that landlords continue to ensure compliance with the gas safety requirements.
For more information contact Laura Hallett Lea in our Business Dispute Resolution department via email or phone on 0333 207 1141. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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