A legal challenge is to be brought in the Court of Appeal after a ruling that a landlord could not regain possession of their property because they had not served a gas safety certificate until after the tenancy started.
The case, Trecarrel House Ltd v Rouncefield, was heard at Exeter County Court last month.
The landlord had initially been granted an order to possess the property using Section 21.
However, the tenant successfully appealed on the grounds that they were not provided with a gas safety certificate before moving in.
Although the certificate was later served, the court said that the landlord’s Section 21 powers were invalid.
The Residential Landlords Association is supporting the landlord, Trecarrell House.
The case follows another, Caridon Property Ltd v Monty Shoolt, also heard at a county court last year.
As EYE reported, that case was important because although county courts do not establish precedent, the Judge is a recognised authority on housing law.
Not only that but Judge Jan Luba has co-written a book, Defending Possession Proceedings, which district judges use when deciding how to apply the law.
Until that case, landlords and agents who had failed to issue a gas safety certificate at the prescribed time, could do so later on before serving a Section 21 notice.
Landlord bodies and lawyers have called on the Government to amend tenancy and gas safety laws, but so far to no avail.
Now it looks as though the Court of Appeal will decide the issue.
David Smith, lawyer and policy director of the RLA, said of the forthcoming challenge: “Protecting the rights of landlords to repossess properties in legitimate circumstances is key to providing the confidence the sector needs to offer longer tenancies.
“The landlord in this case was not seeking to shirk their responsibilities and provided the certificates that were needed.
“We will fight to ensure that if nothing else, logic prevails.”
Comments (8)
I am not legally trained, but, how I see it, I have to disagree with the judge.
Form 6a states the following:-
“Where the landlord has failed to comply with certain existing legal obligations, this form may not be used. However, this restriction is lifted as soon as the obligations have been complied with. The obligations are the requirement on a landlord to provide the tenant with:
• an Energy Performance Certificate (Reg 6(5), The Energy Performance of Buildings (England and Wales) Regulations 2012); and
• a gas safety certificate (Reg 36(6)(a), The Gas Safety (Installation and Use) Regulations 1998)”
When one refers to (Reg 36(6)(a), the legislation states:-
(6) 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;”
However, Reg 36(6)b states:-
“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 that 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.”
It would seem that the judge is looking at 36(6)b whereas 36(6)a is the relevant part.
For belt an braces, one will probably need to have another gas safety done and given a copy to the tenants within 28 days, to ensure compliance of 36(6)a; after which, one can serve a section 21
Lets hope the appeal judge has more sense.
The form I am looking at from https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/515658/Form_6A_INTERACTIVE_FINAL_Possession_property.pdf only states:
where the landlord has not provided the tenant with an energy performance certificate, gas safety certificate or the Department for Communities and Local Government’s publication “How to rent: the checklist for renting in England” (see the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015);
It makes no mention of the specific requirements. Where did you get your form from?
Paragraph 2(b) of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 states:
paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (requirement to provide tenant with a gas safety certificate).
This means that both regulations 6(a) and 6(b) need to be complied with and are relevant when deciding whether a Section 21 notice can be issued and enforced.
Use search term notes for form 6a and you will come across:- http://www.gov.uk/guidance/assured-tenancy-forms.
You will then see a list of forms, click Form 6a and you will find two links under Form 6a, one for the actual section 21 and the other to access the guidance notes, which is where I found the information.
I will revisit this page in case you have further queries.
Quote: “In England, failure to provide the current Gas Safety Certificate at the outset of the tenancy prohibits service of the prescribed Section 21 Notice. This may be rectifiable by serving the Certificate later in the tenancy, however landlords should not rely on this as it is a grey area in the law. However, some county court decisions have persuasively argued that, if a Certificate was not provided at the outset of the tenancy, the landlord cannot serve a Section 21 notice while that tenancy continues to exist”.
Why would you not issue it at the start of the tenancy? Is it because you have taken your eye of the ball or you haven’t one. If the later then you are in big trouble, so maybe we can get this clarified in the story. Was there no gas certificate at the start of the tenancy?
It makes a big difference if you start a tenancy without one ever being valid on the day the tenant moves in …. Failure to provide the CP12 form is a criminal offence and landlords can face fines of up to £6000 or 6 months in prison for failure to provide this material to their tenants. In addition, the landlord is responsible for ensuring that the installation of gas appliances within the property adhere to Part J of the building regulations.
I had a property with an oven that ran on bottled gas, and when the GE arrived to do the GSC, the bottles were empty. I made the Tenants aware that we would need to delay their move in until I could get some gas bottles there to do the check, and they said as their current oven ran on bottled gas, they had some that they would be bringing and the GE could do it when they moved in as they did not want to delay it. As the heating was oil fired, and the Tenants were happy to move in and get the GSC done after they were in, I allowed them to do so, not knowing that it would make a S21 invalid as we couldn’t serve it later. I think the certificate was done a couple of days after they moved in as it was the first available date both could do.
A lesson for many CountryLass, the lawyers will use the letter of the law to win, not what seemed reasonable under the circumstances.
The great thing about PIE is it is a very good communicator for the industry. If ones knowledge is short, hopefully many will appreciate the value of todays story.
I wonder how many know this (just like one month for your car MOT). Many Gas Safe Engineers are not endorsing this on applicable certificates:
From April 6th 2018 a gas safety inspection performed in the 2 months prior to the expiry of the current Certificate is treated as having been performed on the last day of the existing certificate.
This will be a big decision. ..most self managing landlords have little idea of what compliance is required so may never be able to serve a section 21 notice
Whilst I agree with your comment totally I am sure there are many professional agents that will also be affected because it was not thought necessary to provide these until some little judge decided it was necessary; where it hadn’t previously been a requirement. Thank goodness that the RLA (many of whose members are self managing landlords) are backing this with action and finance. Where are the letting agents professional bodies in helping fight these senarios/cases? I think this is a question managing agents should be asking their own professional bodies. It always seems to be the RLA fighting not the RICS (of whom I was a member for several decades) NAEA, ARLA etc. The fact is the Government, the political parties etc are vultures circularing above after weaking their pray (be they landlords or agents) in order to win political votes.
Fact is we are being softened up for abolition of S21. The government, shelter and all the rest of them will keep pushing until collapse of the market. Rent Act 1977 is all I say.