Note – this decision has now been overturned by the Court of Appeal – see the report here.
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A year ago I reported the case of Caridon Property Ltd v Monty Shooltz. This held that, for tenancies which started or were renewed on or after 1 October 2015, when a landlord fails to serve a gas safety certificate on tenants before they occupy the rented property – they will be unable to use section 21 of the Housing Act 1988 to evict those tenants.
Effectively this will turn the tenancy into an assured tenancy where tenants have long term security.
The government have indicated that they are not minded to change the legislation, so the only way this rule can be changed is if the Court of Appeal or the Supreme Court take a different view.
We have now had a decision on a different section of the Gas Regulations which comes to the same conclusion. This is in the case of
Trecarrel House Limited v Rouncefield
Which was a decision at Exeter County Court on 13 February 2019.
The proceedings were possession proceedings under section 21 in respect of a self-contained flat where the heating was provided by a boiler situated outside the flat. No gas safety certificate was served on or displayed in the property before the tenants moved in. The full details of the case are reported on Nearly Legal.
In essence, this case is about the situation covered in s.36(7) of the Gas Regulations. This comes into effect where there are no actual gas appliances in the property being let but where there is gas in the building. The wording of the section is
(7) Where there is no relevant gas appliance in any room occupied or to be occupied by the tenant in relevant premises, the landlord may, instead of ensuring that a copy of the record referred to in paragraph (6) above is given to the tenant, ensure that there is displayed in a prominent position in the premises (from such time as a copy would have been required to have been given to the tenant under that paragraph), a copy of the record with a statement endorsed on it that the tenant is entitled to have his own copy of the record on request to the landlord at an address specified in the statement; and on any such request being made, the landlord shall give to the tenant a copy of the record as soon as is practicable.
You will see the section refers to ‘paragraph 6 above’ which is the paragraph dealt with in the Caridon Property case – the paragraph which says that the gas certificate must be served on the tenants before they occupy the property.
The decision of the court
The Judge at first instance had said that the gas regulations were not engaged as the pipes in the rented property carried water, not gas, and that he did not think Parliament would have intended any breach to be impossible to remedy.
The Appeal Judge disagreed. His reasons were as follows
- Gas can be very dangerous and it is important that, before tenants occupy a property, they can satisfy themselves that the property is safe
This is why it is essential that the gas safety certificate is served before the tenants move in - Subsequent gas safety certificates are less important as the tenant will already have had the assurance of safety from the initial certificate
- Had the government felt that the Carridon case was incorrect the Gas Regulations could have been amended in 2018 when other amends were done
- The changes to the law in 2015 had come about because the original regulations had lacked ‘teeth’ – and no landlord loses the ability to use section 21 unless they have failed to provide essential safety information to tenants
Although this is just an appeal from a County Court decision and so far as I am aware is not binding, I suspect it will be followed now. Unless a landlord is prepared to risk the cost of challenging it.
Conclusion
This case, and the Caridon case, are prime examples of why landlords should not manage properties themselves unless they have undergone basic training and are aware of their legal obligations.
Gas safety is extremely important, people have died in the past. Which is why it is critical that a gas safety certificate is obtained and given or shown to tenants before they move in.
Unless and until these matters are decided differently in the Court of Appeal or the Supreme Court, Landlords who fail to comply with sections 36(6) and 36(7), by failing to provide the gas safety certificate to tenants before they move into the property, will lose the right to use section 21 to evict their tenants.
This rule does not apply to tenancies which started before 1 October 2015 and have not been renewed since then.
So those landlords should, unless they can prove service of the gas safety certificate before their tenants initially occupied the property, allow the tenancy to continue as a periodic and should not give the tenants a new tenancy agreement or renewal form.
“This rule does not apply to tenancies which started before 1 October 2015 and have not been renewed since then.”
But absolutely *will* apply to any pre Oct 2015 tenancy renewal going forward, yes?
Including contractual periodics?
I don’t think so. But we have not had a case on it yet.
what about in the case where a tenant has moved in and the landlord cannot gain access to reserve the gas safety certificate after a year. Does this affect the service of a Sc21 notice
So far as I am aware, no. The problem is only if the landlord fails to serve the original certificate before the tenant moves in.
Poor landlords.
Over on the Anthony Gold blog David Smith said this on the matter:-
“The Deregulation Act states that this provision will apply to any AST in existence at the time from 1 October 2018. However, the 2015 Regulations which specify the prescribed requirements expressly state that they only apply to ASTs granted on or after 1 October 2015 and not to statutory periodic tenancies that came into being on or after 1 October 2015 at the end of an AST granted before that date. It therefore seems that until new regulations are passed to clarify this position, there are no prescribed requirements in existence applicable to old tenancies.”
The penalty far outweighs the infraction and also breaches mortgage regulations.
I cannot see how this can be lawful – forcing someone into breaching conditions of loan
Once agin, ill-thought out, hype-driven, draconian legislation from politicians who simply do not understand housing.
One despairs.
In the meantime, tenants have a field day…the legal imbalance is vomit-worthy.
“I cannot see how this can be lawful – forcing someone into breaching conditions of loan”
The landlord’s contractual arrangements with some third party are their own responsibility and are utterly irrelevant to deciding a dispute between landlord and tenant – still less to a question of statutory interpretation.
I agree about the penalty seeming rather severe though.
This really is nonsense, there is no gas within the let property. The case report didn’t say where the gas boiler was in relation to the let property, if it’s a “central boiler house” it could well be in a separate building or at least on another floor of the same building. The regulations were never intended to be used in this fashion and this nonsense needs to be challenged.
I agree, and this point seems to have been lost at the appeal and Tessa’s response??
So where does this leave us? What about a house that is all electric but is fitted also for gas, i.e. first fix pipes are fitted and connected the to the meter. The meter would normally be fitted within or near the property. Do you need a gas safe cert then?
According to this lunacy, yes you would, but this is what happens when you have solicitors and barristers meddling in something where they have no technical expertise what so ever. Most of them probably couldn’t wire a plug without electrocuting themselves.
Solicitors and barristers don’t make the law. They just have to advise on it and help clients comply with it.
MPs and Judges make the law.
“I agree about the penalty seeming rather severe though”
Let’s bear in mind that the “severe” penalty here is simply being denied the right to evict rent-paying, possibly very settled, long-standing tenants through no fault of ther own, as a consequence of not certifying the safety of the building. The word “severe” is hardly appropriate! Diplomatic negotiation or, failing that, a Section 8, both remain available for actual problem tenants.
What these posts could really do with clarifying is the “going periodic” question. For the deposit scheme the SPT is NOT deemed to be a new tenancy, but the well-respected housing solicitor Giles Peaker has previously suggested an SPT might be seen as “new” for Gas Certificate purposes even if the tenant is already in occupation. The above seems to suggest that the occupancy is the crucial thing, to the point where a tenancy that didn’t need to meet the criteria can become one that does if renewed later, because the occupancy has been continuous.
So, to clarify, if someone moves in with no certificate and before the six months is up a GSC suddenly appears are we now saying the new statutory periodic still doesn’t qualify for a S21 as the tenant was already in occpation?
If the grey area above does still stand would the doubt NOT arise if the original AST already mentioned going month-to-month after the fixed period (with or without the word “contractual”)?
“Section 8, both remain available for actual problem tenants.”
There speaks someone who has never had to evict an anti-social tenant.
Section 8 is not fit for purpose.
Does anyone know the postio’n when:
1. A gas safety certificate has not been shown before the tenancy agreement starts.
2. The tenancy agreement is then subsequently found to be invalid as it has been signed incorrectly in any case.
3. The landlord gives the tenant notice using form SLA 6?
Where does each party involved then stand?
1. Effectively the tenant has an assured tenancy as the landlord loses the right to use s21.
2. A legal tenancy is created anyway under s54(2) of the Law of Property Act 1925 when a tenant starts living in a property and paying rent – so signature irregularities will not affect the validity of the tenancy in those circumstances.
3. What form is this?