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Is a Landlord's Ability to Obtain Possession By Serving a Section 21 Notice Running Out of Gas?

on Tuesday, 08 May 2018.

On an appeal from the Central London County Court, HHJ Jan Luba QC has held in the case of Caridon Property Ltd v Monty Shooltz that if a landlord has not served a gas safety certificate on the tenant, before the tenant has commenced occupation...

...they will not be able to serve a valid section 21 notice to obtain possession. This applies to all tenancies commencing after 1 October 2015.

Facts

In Caridon, the landlord served a section 21 notice on the tenant and then issued proceedings to obtain possession.

The landlord had provided the tenant with a copy of the gas safety certificate before the section 21 notice had been served, but 11 months after the tenant had commenced occupation of the property.

The court considered the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. The AST Regulations require that the landlord comply with the Gas Safety (Installation and Use) Regulations 1998.

Regulation 36(6) of the Gas Safety Regulations 1998 requires a landlord to provide:

  • a copy of a gas safety certificate to each existing tenant of premises to which the record relates within 28 days of the date of the check
  • 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.

Decision

The judge determined that, to comply with the Regulations, a gas safety certificate must be provided to the tenant before it goes into occupation of the property. The judge stated that this was a "once and for all" obligation and the start of the tenancy was the landlord's only opportunity to comply with this requirement. The court considered that any other conclusion risked allowing landlords to not comply with the AST Regulations which could result in landlords letting unsafe premises to tenants.

As the landlord had not served the gas safety certificate before the tenant went into occupation, it had lost its opportunity to do so and it was not able to recover possession under the 'no fault' ground of section 21. A landlord's only option to obtain possession in these circumstances is to rely on one of the grounds set out in Schedule 2 of the Housing Act, many of which require a breach by the tenant and do not guarantee the landlord being able to recover possession.

Comments

Caridon is a County Court decision which is not binding. The judge in Caridon, HHJ Jan Luba QC, was however a leading housing barrister before becoming a judge. As a result, it is likely this decision will carry weight.

This case confirms to landlords the importance of strict compliance with the AST Regulations and the possible effect of non-compliance on the landlord's ability to terminate the tenancy by serving a section 21 notice.

Landlords of tenancies commencing after 1 October 2015 should take steps to ensure that gas safety certificates are served upon their tenants before the tenant moves into the property. Landlords should retain evidence of this service and should ask the tenant to sign acknowledgment to confirm receipt. This evidence can then be used to demonstrate compliance in the event that it later seeks to obtain possession by serving a section 21 notice.


If you are a landlord or tenant affected by this decision and you would like to discuss, please contact Georgina Little in our Property Litigation team on 0117 314 5348.

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