Invalid Section 21 Notice for Gas Safety Certificate failure

Author: Richard Cherry
In: Article Published: Thursday 01 March 2018

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Richard Cherry considers the important decision of HHJ Luba QC in Caridon Property Limited v Monty Shooltz, unreported, on the failure to serve a Gas Safety Certificate on the tenant before the start of the Assured Shorthold Tenant. Richard successfully represented the tenant both at first instance and on appeal, instructed by Advice 4 Renters.

The background to the case of Caridon Property Limited v Monty Shooltz was that the Claimant Landlord let a flat to the Defendant under a 12 month Assured Shorthold Tenancy ('AST') from 25 Jan 2016.

On 16 Dec 2016, the Landlord had a claim for possession dismissed for failure to serve a Gas Safety Certificate on the Tenant. The Landlord then served the Tenant with a Gas Safety Certificate (dated in Aug 2016 but served in Dec) before serving a further s.21 Notice on 19 Dec 2016 and bringing a new, second claim for possession relying on that s.21 Notice. This second claim for possession was heard by the District Judge on 14 Jun 2017.

The relevant legislation was:

  1. s.21A Housing Act 1988 ('HA 1988');
  2. Reg. 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 ('2015 Regulations'); and
  3. Reg. 36 of the Gas Safety (Installation and Use) Regulations 1998 ('1998 Regulations').

Section 21A HA 1988 provides that a s.21 Notice ‘may not be given in relation to an assured shorthold tenancy … at a time when the landlord is in breach of a prescribed requirement.’

Reg. 2 of the 2015 Regulations provides that:

‘(1) Subject to paragraph (2), the requirements prescribed for the purposes of section 21A of the Act are the requirements contained in—

(a) …

(b) 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).

(2) For the purposes of section 21A of the Act, the requirement prescribed by paragraph (1)(b) 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. 36, para (6) of the 1998 Regulations obliges a landlord to ‘...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 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’

The reference in (a) to ‘paragraph (3)(c) above’ is to the requirement on a landlord to:

Ensure that a record in respect of any appliance so checked [ie a gas appliance] is made and retained for a period of 2 years from the date of that check’

It is worth noting that the 1998 Regulations define ‘appliance’ widely – imposing obligations on landlords even when there is nothing they may consider a gas appliance (eg a boiler) in the part of premises actually let to a tenant.

In Caridon, the Landlord sought to persuade the District Judge that, Reg. 2(2) of the 2015 Regulations not only removed the time requirement in Reg 36(6)(a) of the 1998 Regulations to serve a copy of the Certificate within 28 days, but also had the effect of removing the requirement in Reg 36(6)(b) to serve a new tenant with ‘the last record made…’ before the tenant occupies the premises.

The District Judge was not persuaded and the order noted:

‘the prescribed requirement to serve a Gas Safety Certificate before the tenancy commenced [Reg. 36(6)(b)] was not complied with and is not disapplied by Regulation 2(2) of 2015 Regulations’.

The District Judge considered the question whether a Landlord who had not served the most recent Gas Safety Certificate before occupation could ever put themselves into a position to rely upon a s21 Notice, but no firm conclusion was required to be made.

The Appeal

The Landlord appealed on the following grounds:

(a) ‘By virtue of Reg 2(2) of the 2015 Regulations [the Landlord] was required only to give [a gas safety] certificate to [the tenant] and any specific time period did not apply, including the provision to serve such a certificate prior to the tenant’s commencement of occupation.’

(b) ‘As a matter of purposive interpretation it cannot … have been the intention of parliament to allow a landlord leniency in relation to reg. 36(6)(a) but not 36(6)(b)’

(c) If a literal reading of the Regulations were adopted it would result in the secondary legislation (the 1998 Regulations) effectively overriding the primary legislation (Housing Act 1988), as imposing an absolute bar on relying on a s.21 Notice, and creating an irremediable breach (once you fail to serve the most recent Gas Safety Cert before occupation you can never remedy the failure) cannot have been Parliament’s intention.

Ground (a) was effectively abandoned at the appeal hearing since (as HHJ Luba QC noted) it just didn’t hold water – the specific disapplication is of a 28 day period and there is no such period in Reg 36(6)(b) to disapply.

Ground (b) – HHJ Luba QC agreed that a purposive interpretation was available but held the purpose in making the Regulations was to ensure both that rented accommodation should be safe to occupy from the very start of a tenancy and that a prospective tenant could rely on it as being safe. This required giving the appropriate certificate at precisely the times required by the 1998 Regulations. Reg. 36(6) must be read to apply both to prospective and existing landlords and tenants, in order to fulfil the legislative intention.

Ground (c) – HHJ Luba QC opined that adopting the District Judge’s reading did not subordinate the primary legislation to the secondary legislation; it could not be proper to construe regulations enacted in 2015 by reference to the original purpose of primary legislation made in 1988. What the court must do is ensure that the reading is not ‘inconsistent with the primary function of the AST Regs themselves.’ The court’s reading ‘controls the landlord’s ability to give notice under Section 21 to those circumstances in which assurance has been given to the occupier that the premises are safe’.

The obligation either to display or provide the Gas Safety Certificate to a new tenant was a once and for all obligation:

If the Minister believed that that ‘once and for all’ cut off should not debar a landlord from serving a Section 21 notice, it was open to the SoS to simply disapply those parts of Paragraphs 6 and 7 of Regulation 36 in express terms in what has become Regulation 2(2).’

HHJ Luba QC observed that the book ‘Defending Possession Proceedings’ (of which he is an author) noted the absolute effect of the legislation, ‘although this ‘may not have been the legislative intention’. However it was open to the Landlord to appeal to the Court of Appeal or indeed for the Minister to amend the Regulations. HHJ Luba QC dismissed the appeal.

Comment

Reg. 36(6) of the 1998 Regulations imposes two discrete obligations on a landlord: first, to serve a Gas Safety Certificate on new tenants before they occupy and then to serve on the tenant a copy of each annual certificate thereafter. For the purposes of s.21 Notices, the second can be complied with at any time prior to serving the notice; the first is a once and for all obligation and, crucially, if not complied with before occupation, the breach is not capable of remedy. One line of argument suggests that it may be complied with in respect of the statutory periodic tenancy following a fixed term by serving before the start of the statutory periodic tenancy, but this is far from certain and would require some reading down of the words 'before that tenant occupies those premises' in the Regulation. It is the writer’s view that given the decision of HHJ Luba QC in this appeal, it would be unlikely for a landlord to be able to comply in this way, but this was not an issue in the appeal before HHJ Luba QC.

The emphasis, not just on having appliances checked, but also providing assurance to the occupier that premises are safe is in some ways analogous to the requirement not only to protect a tenancy deposit, but also to give the tenant the prescribed information.

The decision in Caridon may put landlords in difficulty with existing tenancies. Although the requirement to serve the appropriate certificates is not new (whereas the effect on the s.21 process is) and fulfils a very serious purpose, unless and until this (persuasive) decision is overturned or the executive amends the Regulations, failure to serve the Certificate before occupation will prevent a landlord ever obtaining possession by way of a s.21Notice.

While the requirement currently applies to tenancies granted after 1 Oct 2015, it will be extended to all ASTs from 1 Oct 2018.

The only tenants a landlord will be ‘stuck with’ are those not in breach of their tenancy conditions. However, landlords often prefer to seek possession via the s.21/accelerated proceedings route rather than by s.8 Notice even when there is breach – there can be no disrepair counterclaim and the reality is a landlord with a money judgment or costs order can rarely enforce it. Many landlords are conscious that the commercial approach is simply to take the quickest, cleanest route, the s.21/accelerated proceedings route, to regain possession of their property before re-letting it.

Letting agents will do well to study the precise requirements and advise client landlords accordingly. Of course many competent letting agents already produce a pack for tenants with the How to Rent booklet, EPC, deposit protection prescribed information etc and the initial Gas Safety Certificate can simply be added to this. It will always be prudent to obtain signatures from tenants and prospective tenants evidencing service of the ever-growing sheaves of documentation.

RICHARD CHERRY © 2018

BARRISTER

33 BEDFORD ROW 

Richard Cherry regularly advises and represents landlords and tenants at all levels up to the Court of Appeal. 

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole