KAUR v GRIFFITH (25th July 2019 – County Court at Bromley)

1st August 2019 By Arman Khosravi

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, infront 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 intothe 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.


by Billy Clerkin.

Latest News

Family Judge Grasps Nettle in Sending Baby Boy to Live With His Father

21st November, 2019 By

Family judges are always absolutely focused on the welfare of children and will not shrink from grasping nettles to give them the best chance of leading fulfilled and happy lives. That was certainly so in one case in which a judge ordered that a baby boy be taken from his troubled mother's care and sent to live with his father. The mother had been diagnosed as suffering from traits of a personality disorder and her two older children had already been taken into care and placed for adoption. Her history...

Vulnerable Witnesses Could Be Given Greater Protection in Civil Courts

18th November, 2019 By

Responses to a report from the Civil Justice Council (CJC) setting out proposed measures to better support and protect vulnerable witnesses and parties in civil proceedings are due to be considered following public consultation. The CJC wants to ensure 'a sufficiently proactive and consistent approach to enabling the proper participation in civil litigation of those who are, or may become through involvement in the process, vulnerable'. Its report considers vulnerable parties and witnesses in all types of civil litigation, but was spurred by a recommendation coming out of an independent...

Facing a Tax Investigation? Don't Bury Your Head in the Sand!

12th November, 2019 By Arman Khosravi

If you are facing an investigation by the tax authorities, your very first step should be to seek professional advice. One taxpayer who sadly chose not to take that course, instead burying his head in the sand, narrowly escaped a six-figure back-tax bill. Following an enquiry, HM Revenue and Customs (HMRC) formed the view that the man had been trading in second-hand cars for years without declaring his profits for Income Tax purposes. Assessments were raised in respect of a 12-year period and, after late payment penalties were added, his...

Court Orders Must Be Obeyed

7th November, 2019 By Arman Khosravi

Public confidence in the civil justice system would collapse if court orders were not rigorously enforced – however agonising complying with them may be. The point was made by a case in which a divorcee who refused to move out of her home of 25 years came within an ace of being sent to prison for her defiance. Following lengthy and bitter divorce proceedings, the woman had been ordered to quit the home where she brought up her children so that it could be sold and the proceeds divided between...