A significant ruling in an appeal case may change the way that landlords handle providing tenants with Gas Safety Certificates – and landlords should be prepared in case of future disputes, by ensuring they provide a Gas Safety Certificate before their tenants move in.
The Housing Act 1988 confirms that a Section 21 Notice requiring a tenant to vacate a property let under an Assured Shorthold Tenancy cannot be given when the landlord is in breach of a prescribed requirement – the Regulations confirm that this includes the requirement to provide the tenant with a Gas Safety Certificate, but it has been, until recently, thought that there was no period within which the landlord needed to give the tenant the Gas Safety Certificate.
It has therefore been commonly thought that, so long as a landlord gives their tenant a Gas Safety Certificate at any point prior to serving a Section 21 Notice, should they thereafter serve a Section 21 Notice, then that Notice will be deemed “valid”.
The accepted interpretation of these regulations has been called into question by the Judgment of HHJ Luva QC, an experienced housing lawyer, in the case of Caridon Property Ltd vs Monty Shoolts. In that appeal case, the Judge noted that the Gas Safety (Installation and Use) Regulations 1998 required a Gas Safety Certificate to be given to any new tenant of premises “before that tenant occupies those premises”.
The Judge concluded that as the landlord had not given the tenant a Gas Safety Certificate prior to the tenant moving in – but rather that the landlord had sought to give the Gas Safety Certificate after the tenant had moved in, but prior to the service of the Notice – that the subsequently served Section 21 Notice was “invalid”, and therefore that the landlord could not get back possession of the property.
Part of the Judge’s reasoning was that to conclude otherwise “would leave it open to the landlord to give a Section 21 Notice even where the landlord has let what at the time may have been dangerous and unchecked premises that may have fallen foul of GS Regs”. The Judge also noted that “if the latest Gas Safety Certificate was not given to the tenant before he or she occupied, this is a breach which cannot be rectified”.
The Judgment, whilst an appeal case, was given in a County Court and therefore is not necessarily binding. However, HHJ Luva QC is a well-known and trusted housing practitioner; therefore it is likely that Defendant tenants in residential possession cases moving forward will seek to raise such an issue with a Judge as a potential defence to the claim.
It is therefore imperative that landlords and/or their letting agents provide prospective tenants with an up-to-date and valid Gas Safety Certificate prior to the tenant actually moving in to the property and that they keep a suitable record of having done so.
Astle Paterson offers up-to-the-minute expertise to landlords, helping to ensure that they are always in keeping with required standards and documentation.
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