Gas Safety Certificates: Landlords Beware!

Wednesday 8 May 2019

The vast majority of residential tenancy agreements in this country are Assured Shorthold Tenancy Agreements.

Under these Agreements tenants do not have security of tenure.  This means that at the end of the fixed term of the tenancy, the landlord can obtain possession of the property once he has served the tenant with the appropriate notice (known as a Section 21 Notice).

However following the wide-ranging Deregulation Act 2015, extra hurdles were put before landlords seeking to serve a Section 21 Notice. These join the previously established requirement that a landlord must either have protected a tenant’s deposit in a timely fashion or returned the deposit in full, and state that a landlord must have provided the tenant with a Gas Safety Certificate (GSC) and an Energy Performance Certificate (EPC).

The Assured Shorthold Tenancy Regulations 2015 state that the requirement to provide the GSC is “limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply” and this has previously been taken to mean that the provision of the GSC immediately before a Section 21 Notice would be adequate to allow valid service of that Notice and the GSC did not need to be provided within 28 days of the date of the checking of the appliance as required by the Gas Safety Regulations 1998.

However the precise interpretation of that piece of legislation has taken a dramatic turn following the recent decision in the case of Caridon Property v Monty Shooltz.

The Judge in that case (His Honour Judge Jan Luba QC, who before becoming a judge was one of the country’s pre-eminent housing barristers) decided that the 28 day requirement in the Gas Safety Regulations did apply and, therefore, if a landlord had not provided the GSC to the tenant prior to moving in, the landlord could never rely on a Section 21 Notice as a means of ending the tenancy and recovering possession.

This would not affect a landlord’s ability to obtain possession under Section 8 of the Housing Act 1988 on the basis of some specific ground (most often the conduct of the tenant in, say, failing to pay rent).  However so long as the tenant behaved and there was no special circumstance (such as the landlords having provided in the tenancy agreement for requiring the property for their own occupation) the landlord would not be able to recover possession of the property (possibly ever).

It seems unlikely that such a permanent bar was intended, especially by comparison with the deposit situation, which at least allows a landlord the final recourse of returning the deposit (and potentially paying compensation should the tenant seek it), in order to regain possession.