Defective S.21 Notice – Gas Safety Certificates & Caridon Property Ltd -v- Monty Shooltz
Welcomed by tenants and housing practitioners but perhaps a current landlord’s worst nightmare, HHJ Jan Luba QC has provided much needed clarification on the application of the Gas Safety (Installation and Use) Regulations 1998.
In an appeal of a first instance decision of DJ Bloom, HHJ Jan Luba QC sent a highly persuasive message to housing practitioners and landlords. Although not binding as a County Court decision (unless tested at the Court of Appeal), landlords who did not provide a gas safety certificate at the start of a post 1st October 2015 tenancy, before the tenant moved in, may find that any S.21 notice served during the term is invalid.
It is S.21A of the Housing Act 1988 as (amended) which states that a S.21 notice cannot be given in relation to an AST if the landlord is in breach of the prescribed requirement. Just some of the prescribed requirements are found in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. By paragraph 2 (1) (b) it is prescribed that a tenant must be provided with a gas safety certificate, Paragraph 2 (2) states that the requirement to give 28 days notice does not apply but simply the requirement is to give a copy of the relevant record to the tenant.
The Gas Safety (Installation and Use) Regulations 1998 states at 36 (6) that “Notwithstanding paragraph (5) above, every landlord shall ensure that –
(a) a copy of the record made pursuant to the requirements of paragraph 3(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check and;
(b) 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 the tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.”
Now, in HHJ Luba QC’s Judgement he explained that paragraphs 6 & 7 of Regulation 36 is only impacted in relation to notice of gas safety given to existing tenants. When referring to the 28 day period in Regulation 2 (2) and it’s wording HHJ Luba explained: “In my Judgement, what those words mean is that where a landlord is seeking to say he or she has complied with the variant of paragraph 6 or 7 relating to an existing tenant then the 28 days period for compliance with the requirement to give notice to an existing tenant does not apply.”
Further HHJ Luba QC noted: “It may be observed, simply in passing that in the most recent edition of the handbook ‘Defending Possession Proceedings’- widely referred to by the first instance judiciary when dealing with possession cases, the authors of whom I am one- have written at paragraph 10.50 that “…if the latest gas safety certificate was not given to the tenant before he or she occupied, this is a breach which cannot be rectified… although this may not have been the legislative intention.
While Caridon property Ltd v Monty Shooltz is only a County Court Appeal this decision will be treated as precedent as the Judge at first instance was a regarded Housing lawyer and at Appeal HHJ Luba QC is regarded as an eminent Housing lawyer.
Since 1st October 2015 I have advocated to landlord’s and agents who instruct me that tenancy agreements must require tenants to sign for (as received) all the prescribed documents i.e. the EPC, Gas Safety Certificate, latest version of the How to Rent guide, Deposit Certificate and accompanying prescribed information. I also advise landlords to ask tenants to sign that any Fire & Carbon Monoxide alarm has been tested as functioning in their presence. Further it is advisable (in the avoidance of dispute) that the check-in inventory and a copy of any superior lease (if advised) be exhibited to the tenancy agreement and signed for as received.
By Arman Khosravi, Partner, dated 13th February 2018