Note that the effect of this decision has now been reversed by the Court of Appeal in the case of Trecarrel v. Rouncefield.
As you should be aware, all landlords of assured shorthold tenancies need to serve a gas safety certificate on their tenants before the tenancy starts (unless the property is without gas).
Under the new rules brought in by the Deregulation Act 2015 (which apply only in England) if this is not done then no valid section 21 notice can be served.
At the moment this applies to all tenancies which started or were renewed on or after 1 October 2015.
The new rules as a whole will apply to all ASTs after 1 October 2018 but as the regulations currently stand this does not specifically include the rules on EPCS and Gas Safety Certificates for pre 1 October 2015 tenancies – where no new tenancy agreement or renewal has been granted since then.
But there is a big problem for post 1 October 2015 tenancies.
The wording of the regulations
In the past, the general view, encouraged it has to be said by government guidance notes, was that the gas safety certificate could be served late and this would rectify the situation so a valid section 21 notice could be served. However, on looking closer, this is not what the regulation wording actually says.
Under gas regulation 36(6)):
” … every landlord shall ensure that—
(a) a copy of the record made pursuant to the requirements of paragraph (3)(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and
(b) a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises
The Deregulation Act rules said that the requirement to serve within 28 days as in (a) should not apply but did not refer to (b) which talks about serving before the tenant occupies the premises.
A recent case
In a recent case, Caridon Property Ltd v Monty Shooltz, in the Central London County Court, a possession order was refused on the ground that the section 21 notice was invalid due to failure to serve a gas safety certificate on the tenants before they moved in.
Although a certificate was served some 11 months later and before the service of the s21 notice, the Judge did not accept that this was sufficient to satisfy the rules.
The case was appealed and the appeal Judge upheld the decision of the County Court Judge.
A fuller report of the case can be found on the Nearly Legal website, with quotes from the judgement and interesting discussion in the comments.
It is feared that this could prove to be a situation similar to the Superstrike case in 2013 the effect of which was that landlords who thought that they were compliant with the law relating to tenancy deposits found that they were not.
However, after Superstrike, landlords could always take action (provided for in the regulations) to refund the deposit which would then allow them to serve a valid section 21 notice. There is no such ‘get out’ clause for these regulations. So this problem could prove fatal for service of a valid s21 notice.
How this affects you
Moving forward you should ensure always that you have served the Gas Safety Certificate on your tenants BEFORE they are given the keys. (For good measure make sure you also serve the EPC as this is another new section 21 pre-requisite).
You need to serve these documents in a way that can be proved later – ideally by getting the tenants to initial and date a copy of the documents – making sure that the date of receipt is before the start of the tenancy. Or you may be able to prove service via an electronic signature process. Whatever method you use, make sure you keep full details so you can prove service later should this be necessary.
Landlords Law members will find guidance on service of documents here.
If your property is one which does not have gas or where an EPC is not required, then make sure you keep a record of this fact also.
If your tenancy pre-dates 1 October 2015 then these rules do not apply to you. The regulations state that they only apply to post October 2015 tenancies.
If your property is in Wales, these Deregulation Act amendments do not apply to you – although Welsh landlords still need to get gas safety certificates, it’s just that they do not impact on the validity of section 21 notices as they do in England.
Watch this space
The Caridon Property case is only a County Court decision and technically not binding on other courts (save in London). However, the experts’ view is that the Judge’s decision was the right one in law. If this is not something that Parliament intended then they will have to amend the regulations.
But until then it is going to make things very difficult for non-compliant landlords. Although landlords don’t really have any excuse for being non-compliant – as these rules have been in force for many years.
But, if you are a landlord, make sure that YOU are compliant going forward.
NB Landlords needing to evict their tenants will find our free guide here.