Failing to issue tenants with a gas safety certificate could cost you the right to repossess your rented property. This month, Sarah Coates-Madden discusses a case that has toughened up the rules on serving Section 21s…
I’ve heard the gas safety regulations could prevent me from serving a Section 21 notice. Is this true?
If you are a private landlord and you have not complied with the Gas Safety (Installation and Use) Regulations 1998, you might be forever prohibited from using the Section 21 procedure to gain possession of your property.
This is due to a court decision in the case of Caridon Property Ltd v Monty Shooltz, in which the validity of a gas safety certificate was challenged because it was served at the same time as the Section 21 notice.
Following the introduction of the Deregulation Act 2015, there are various hoops you must jump through before serving a valid Section 21, one of them being the requirement to give your tenant a gas safety certificate. Despite this legislation being three years old, we still see many landlords who have failed to comply.
The Act itself does not specify when the gas safety certificate must be issued, but the Shooltz case dug a little deeper and looked at the Gas Safety Regulations 1998. They clearly state a certificate “must be given to any new tenant before that tenant occupies those premises.” The court found that as the landlord had not complied with the older piece of legislation, he could never meet the requirements of the Deregulation Act and therefore, could never serve a valid Section 21.
This seems a little unfair as the act did not come into force until 2015. The counter argument, however, is that the gas safety regulations have been around for 20 years, so landlords have had plenty of time to start issuing certificates before anybody occupies their properties.
Originally, the requirement to produce a gas safety certificate before a valid Section 21 only applied to tenancies that commenced after October 1 2015, but as of this year, it was extended to include ones that started before that date. Therefore, landlords might now face problems serving a valid Section 21 if they did not provide gas safety certificates before tenants occupied their properties.
Surely, I shouldn’t be punished in such an extreme way if serving the gas safety certificate late was a genuine mistake?
Although the judge in the Shooltz case placed high importance on the Gas Safety Regulations and the protection of tenants, the decision was only made in a county court, so does not have to be followed by other judges.
It is thought that the legislation covering pre-October 2015 tenancies might be amended so that a Section 21 can be served if a gas certificate is issued at any point before the possession notice. Nothing is likely to happen quickly, however, but we will keep you updated.
I have personally obtained possession orders for landlords who issued gas safety certificates late or even when they served them immediately before the Section 21.
The lesson from the Shooltz case is that you must comply with the gas safety regulations and always give tenants a certificate before they take up occupation. I would also advise keeping a record that it has been done. For example, ask the tenant to sign confirmation that states: “I have been given a copy of the gas safety certificate prior to occupation of the property.”
There is currently no guarantee you would gain possession via a Section 21 if the judge overseeing your case decides to follow the Shooltz precedent. Until legislation is changed or a higher court contradicts this decision, it may be better to take the Section 8 route to possession, assuming there has been a breach of the tenancy.
For further advice on serving a Section 21 notice and your obligations under the Gas Safety Regulations, don’t hesitate to contact me or Anna Pettinger on (0114) 218 4000.