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Gas Safety Certificates & Section 21 Notices

The Gas Safety (Installation and Use) Regulations 1998 impose various obligations on residential landlords. These include a requirement to carry out an annual gas safety inspection (reg.36(3)); to give a tenant a copy of a gas safety certificate within 28 days of any such inspection (reg.36(6)(a)); and, to give the current certificate to any tenant prior to occupation (reg.36(6)(b)).

A Section 21, Housing Act 1988 notice may not be given at a time when a landlord is in breach of a prescribed requirement (s.21A, 1988 Act). The prescribed requirements include reg.36(6) of the Gas Safety (Installation and Use) Regulations 1998, save that “… the requirement… is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply” (reg.2(2), Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015).

I am not going to go into what the regulations mean exactly. Various legal websites can do a better job than me in explaining the law. What I will do is explain how this very important judgement affects Housing Options Officers.

When a tenant is served a Section 21 notice and approaches a local authority for assistance an officer will ask for certain information from them to check whether the Section 21 notice is valid. For example, they will ask to see that the deposit was protected and for tenancies post 1 October 2015 also ask to see that they have been given a gas safety certificate, energy performance certificate and the How to Rent booklet. In working with many different councils, I often find that whilst they may ask for the above documents they do not consistently ask ‘when’ they were given the above documents or ‘when’ the deposit was protected or ‘when’ they were given the prescribed information in relation to the deposit. This second question of ‘when’ is just as important as asking for evidence that the documents were given to the tenant. This is because if the documents were given AFTER the serving of the Section 21 notice this would invalidate it.

In Caridon Property Ltd v Shooltz, County Court at Central London, 2 February 2018, and Trecarrell House Limited v Patricia Rouncefield at Exeter County Court, 13 February 2019 the respective county court judges stated that where a gas safety certificate was not given to the tenant prior to their occupation of the property then a Section 21 notice can NEVER be served as this could not be remedied by issuing the certificate at a later date. If the applicant were, therefore, not issued a with gas safety certificate prior to moving in then a local authority could consider the Section 21 invalid and issue the applicant with a not homeless decision with the landlord having little prospects of evicting them in the future, unless, for example, the tenant breached the terms of their tenancy agreement.

In a judgment handed down on 18 June 2020 the Court of Appeal, in the case of Trecarrell House Limited v Patricia Rouncefield [2020] EWCA Civ 760, concluded by a 2:1 majority that the failure to provide a gas safety certificate prior to a tenant’s occupation DOES NOT prevent a landlord serving a Section 21 notice as long as the relevant certificate has been given before service of the notice.

This means that the gas certificate falls in line with the other 2 documents, energy performance certificate and the How to Rent booklet, whereby a landlord just has to make sure that these are given to the tenant prior to any serving of a Section 21 notice. A Housing Options Officer should still ask the question ‘when were you given the above documents?’. If they were given them after the serving of a Section 21 notice then this would invalidate the Section 21 but all that a landlord would have to do is serve another notice. At least it could give the opportunity for the local authority to do some non-statutory prevention work.

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