Background
Ms Griffith is an Tenant of Mrs Kaur having entered into an Assured Shorthold Tenancy on 6 December 2016. This ended on 5 June 2017 and became a Statutory Periodic Tenancy. A section 21 notice was served on Ms Griffith and an order for possession was made on 13 June 2019.
Ms Griffith made an application to set aside the possession order and subsequently instructed Oliver Fisher Solicitors to act for her.
A hearing for the defendant’s application to set aside the possession order took place on 25 July 2019 at Bromley County Court, in front of District Judge Coffey.
While a number of defences were raised, the issue central to this hearing was related to the carrying out of Gas Safety Checks. The claimant alleged that a Gas Safety Check was carried out on 6 December 2016 and a Gas Safety Certificate was served to the defendant that same day, which was also the date of signing the tenancy agreement. The defendant denied this.
The claimant alleged that she carried out a further Gas Safety Check on 21 January 2018, and provided the defendant with a copy of this Gas Safety Certificate on that same day. The defendant denied this also.
Counsel for the defendant, Mr Richard Cherry, submitted that a section 21 notice could not be served because the Gas Safety Check carried out on 21 January 2018 was more than 12 months after the previous one.
The law
Section 38 of Deregulation Act 2015 inserted section 21A into the Housing Act 1988. In short, this is a requirement that landlords provide tenants with information which is prescribed by the Secretary of State. This prescribed information is set out in section 2 of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the 2015 Regulation”).
Regulation 2(1)(b) of the 2015 Regulation states that a Gas Safety Certificate must be provided to a tenant before the tenant occupies the property in line with paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (“the 1998 Regulation”).
The landlord must then carry out yearly gas safety checks in line with regulation 36(3) of the 1998 Regulations and provide each tenant with a record of that check in line with regulation 36(6)(a).
Decision
Coffey DJ accepted that the lateness of the 2018 Gas Safety Check and subsequent late Gas Safety Certificate invalidated the section 21 notice because the check had not been carried out within 12 months of the previous check, in line with Regulation 36(3) of the 1998 Regulation.
Discussion
The decision in Caridon Property Limited v Monty Shooltz held that a GSC must be provided to the tenant at the start of their tenancy. It was held that where this is not complied with, a section 21 notice cannot be served.
Trecarrel House Limited v Rouncefield appealed the first instance decision which held that there is no time limit on the provision of gas record being served for the purpose of section 21. However, HHJ Carr found that a failure to comply with Regulation 36(7) of the 1998 Regulation cannot be remedied and section 21 was not available to the Landlord, following the judgement in Caridon.
Both Caridon andTrecarrel considered the service of a GSC at the time of a tenant moving into a property, i.e. regulations 36(6)(b) and 36(7). It is important to note the Court of Appeal have granted permission for the decision Caridon to be appealed.
Kaur is in line with these decisions but differs from them as it concerns the carrying out of a Gas Safety Check subsequent to the initial check, which is dictated by regulations 36(6)(a). This decision shows that a landlord cannot serve a section 21 notice if they have not carried out the relevant yearly gas safety check.
This decision is not binding as it was a first instance decision but can be held as persuasive.
The client instructed our Arfan Bhatti, Avikar Singh and Billy Clerkin.