A second case confirms that a landlord who fails to provide a gas safety certificate before the start of a residential tenancy cannot later terminate the tenancy by using a section 21 notice.
The Gas Safety (Installation and Use) Regulations 1998 (the Regulations) oblige landlords to provide a copy of the latest gas safety certificate to an incoming tenant "before that tenant occupies the premises" and to provide existing tenants with a copy of the gas safety certificate produced after every annual check thereafter, within 28 days of the date of that check.
In the case of Caridon Property Ltd v Shooltz in February last year(see our article Early service of gas certificates essential for new tenants), HHJ Luba QCheld that the purpose of the Regulations was both to ensure that landlords carried out their obligations in relation to checking and maintaining gas supplies and flues and to provide an assurance to tenants that this has been done.
Importantly, that case held that landlords are not able to terminate an assured shorthold tenancy (AST) by serving a notice under section 21 of the Housing Act 1988 unless they have provided the tenant with a copy of the gas certificate before the start of the tenancy. Once the tenancy has started, it is too late to do this. Whilst landlords can still end the tenancy by serving notice under section 8 of the 1988 Act, this usually requires some wrongdoing by the tenant, and there may not be any. This means landlords who fail to provide a gas safety certificate before the start of the tenancy can be prevented from recovering possession of their property indefinitely.
Being a county court case, the decision in Caridon is not binding on other courts. However the outcome has now been repeated in another county court case, Trecarrell House Ltd v Rouncefield (unreported, 13 February 2019). The case has not yet been reported but is mentioned in an article on the Nearly Legal website.
The tenant occupied a residential flat under an AST granted on 20 February 2017. The landlord sought possession by serving a section 21 notice on 1 May 2018. The landlord had not provided or displayed a gas safety certificate before the start of the tenancy, although it had served one prior to the service of the section 21 notice.
As in Caridon, the question was whether the section 21 notice could be relied upon given the landlord’s failure to comply with the Regulations.
At first instance DDJ Rutherford found in favour of the landlord, saying: ‘It cannot have been the case, in my view, that those who drafted both the primary legislation and the statutory instruments meant it to be the case that if a landlord failed to comply at the outset of a tenancy he was unable then to remedy any breach.’
The tenant appealed on the basis of the decision in Caridon: the initial failure to provide the certificate prior to commencement of the tenancy could not be remedied later and so the section 21 notice could not be relied upon.
HHJ Carr allowed the appeal, referring to and agreeing with the decision in Caridon that the breach could not be remedied later and emphasising the importance of ensuring that tenants receive assurances that properties are safe before they move in. The landlord’s possession claim was therefore dismissed.
As with Caridon, the decision in this case is also not binding and future cases may be decided differently, although these decisions will undoubtedly be referred to. In the meantime, the clear message is that it is vital for landlords to comply with the requirement to provide a gas safety certificate before the start of the tenancy, as failure to do so cannot be remedied later.
It seems that there has been some lobbying of the Government by landlords to change the law so that a landlord is able to rescue the position after the start of the tenancy, to avoid being stuck with what is effectively an assured tenancy rather than an assured shorthold tenancy. An article dated January 2019 on the website of the National Landlords Association (NLA) states that the Ministry of Housing, Communities and Local Government has told the NLA that it does not intend to legislate to reverse the effect of the Caridon decision. The NLA says that it will continue to lobby for a change.