Private landlords have many legally imposed and unavoidable responsibilities towards tenants. However, recent court cases highlight the importance of serving certain prescribed information at the start of a tenancy - including gas safety certificates.
Some obvious responsibilities are designed to ensure the safety of the tenant, such as the requirement to fit fire and carbon monoxide alarms and take steps to prevent legionella, making sure electrical wiring and electrical equipment in the property is safe and inspected by an electrician and ensuring any furniture provided conforms to the guidelines set out in the Furniture and Furnishings (Fire) (Safety) Amendment Regulations 1993.
To that list has been added a number of other duties, such as carrying out right to rent checks, safeguarding any deposit in a government approved scheme as well as supplying a current EPC and a copy of the government 'How to Rent' leaflet and a current gas safety certificate as part of the 'prescribed information'.
Recent court cases make timing of service of prescribed information crucial
Recent, although not terribly well publicised, cases have highlighted the importance of serving certain prescribed information at the very start of an Assured Shorthold Tenancy (AST) - before the tenant has even moved in - following perhaps unintended or unforeseen consequences as a result of changes to the law brought about by the Deregulation Act 2015.
The case of Assured Property Services v Ooo, heard at Edmonton County Court on 31 June 2017, involved the late service of a gas safety certificate which then enabled the tenant to successfully argue that a subsequently served S21 Notice was invalid.
A more recent case - that of Caridon Property Ltd v Shooltz heard at a London County Court appeal in February 2018 - reached a similar conclusion, making the commonly accepted belief among landlords and agents that certain notices, such as the gas safety certificate, can be served late without compromising a S21 Notice incorrect.
Service direct to tenant before tenancy commences is essential
It would appear, then, that landlords and agents must serve the prescribed information - at the very least the gas safety certificate and most likely the EPC and How to Rent Guide - at the very start of any new tenancy before the keys are handed over and the tenant has moved in. These documents must also be valid on renewal, otherwise any subsequent S21 Notice will also be invalid.
Judgement in both cases relating specifically to gas safety certificates was based on a far stricter and very literal interpretation of section 21A of the Housing Act 1988 (as amended) which states that: "a notice under subsection (1) or (4) of Section 21 may not be given in relation to an assured shorthold tenancy of a dwelling house in England at a time when the landlord is in breach of a prescribed requirement".
The rules embodied in the Gas Safety (Installation and Use) Regulations 1998 have also been far more strictly interpreted and by implication must now be strictly observed. Therefore, unless the tenancy is less than 28 days, it is evidently now not sufficient merely to display a copy of the gas safety certificate in the premises, as many landlords have previously done.
The certificate must be given to any new tenant before the tenant occupies those premises.
No way to rectify failure to serve documents at the outset of a tenancy
As things now stand following these judgements, nothing can be done to make a S21 Notice valid in future once the omission to serve at the outset has occurred. Landlords in this situation would have no option but to use a S8 Notice to gain possession - not a simple or straightforward solution.
Although these judgements are presently only County Court appeals in London, they may become binding across England and Wales should future appeals to a higher court make them so.
How to avoid this potential problem
The safest course for any landlord or agent to avoid such problems would be to integrate and automatically include copies of the current EPC, current gas safety certificate and a current copy of the How to Rent guide (making sure it's the latest version) along with the deposit protection information as part of the actual tenancy agreement.
Agents should also note that the tenancy agreement itself must still also give the landlord's address and contact details as well as their own.
Proof of service and receipt would still be essential - email remains sufficient provided the tenant has agreed to accept documents in this way and a reference to 'service by email 'is made in the tenancy agreement.