Court case results in warning to agents that gas safety certificates MUST be issued by time tenancy starts

A county court ruling on Section 21 notices could have drastic implications for landlords and lettings agents who haven’t obtained gas safety certificates ahead of a tenancy starting, lawyers have warned.

Dutton Gregory Solicitors, which run’s ARLA Propertymark’s helpline, has written to the trade body to highlight a county court judge ruling last month that landlords who did not provide a gas safety certificate at the start of a tenancy could find that any attempts to issue eviction notices are invalid.

Judge Jan Luba QC was hearing an appeal against a ruling that dismissed a possession claim by Caridon Property after the tenant, Monty Shooltz, said a gas safety certificate hadn’t been issued to him at the start of the tenancy.

The judge rejected the appeal and said since implementation of the Deregulation Act 2015, a Section 21 notice can only be service if a landlord has complied with Gas Safety (installation and use) Regulations 1998 rules.

The 1998 regulations state that a certificate must be given within 28 days of a check to existing tenants but must also be given to any new tenants at the start of a tenancy.

The judge said: “Once that opportunity has been missed, there is in my judgement no sense in which it can be rectified.”

Robert Bolwell, head of landlord and tenant at Dutton Gregory, said the decision was not binding on the judicial system as it was a county court ruling but pointed out that Judge Luba was highly regarded so his decisions may well be followed by others.

Bolwell said: “If landlords or their agents have not served the gas safety certificate before a tenant takes up occupation of a property, there may well indeed be fatal consequences but in the meantime the judge’s learned words are creating considerable uncertainty each time a possession action is considered.”

He said trade bodies were making representations to the Government regarding how the drafting of the 2015 regulations create an issue that a landlord or agent can never rectify.

Bolwell added: “For practitioners it is now more important than ever to have a paper trail and to be able to prove that a gas safety certificate was given to a tenant ‘before’ they take up occupation under an assured shorthold tenancy.”

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7 Comments

  1. SarahPercy33

    Am I missing something here?  Surely it’s been a regulation for years that a valid Gas Safe Certificate is given to the tenant on the day they move into their new property?  We ensure our tenants sign a list of the documents they have been given on the day which includes AST, Deposit Cert, Prescribed Info, How to Rent, EPC, Gas Cert etc.  The N5b Possession form now includes questions relating to all these documents and when they were served.  People need to wise up fast to this as it is going to be the latest way of tenants getting S21 Possession proceedings dismissed.

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    1. Woodentop

      Well said, that is the case and good practice. I’m surprised by this story. IF agents don’t know this … you need to seriously put your house in order. “We ensure our tenants sign a list of the documents they have been given on the day which includes AST, Deposit Cert, Prescribed Info, How to Rent, EPC, Gas Cert etc.”  You must have a paper trail for everything that involves tenants. Without it they will argue it never happened and the courts are now inclined to take the tenants side without it. We often have to fight shelter and tenants who don’t tell the truth and shoot them down with documentation. Little effort to get it right, pays big dividends for agents and landlords.

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    2. Peter

      The issue is the loss of ever using a section 21. It basically means, subject to a higher court ruling, that if one fails to supply a gas safety certificate prior to the tenancy commencing, you can never, yes never, rely on a Section 21, even if one was provided a day later.

      A list to prove that various documents/certificates was provide at tenancy commencement is wise indeed, but this does not confirm receipt prior, merely on the day. I would suggest you also note that the gas safety cert was supplied prior to signing the tenancy, better still, email it to them at least a day before as well. don’t forget that unless they are married, each tenant needs to receive their own cert.

      For those that remember Section 20’s then you know what should be done to protect your landlord.

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    3. CountryLass

      My first reaction was ‘Duh?’ as well!

      I don’t have a list that they sign, I print out two copies and get them to sign one as I hand the other over. A list is probably a better idea though, less paper and space. I just figure that then they can’t claim they have never seen a copy if I have one with a signature…

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  2. Will

    Whilst I follow the same practice as the above respondents if there was a valid gas certificate at the time of letting that should have been good enough. The constant attack on landlords and agents is counter productive and illustrates how landlords and agents are being set traps to prevent use of s21.

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  3. jeremy1960

    Looking at Caridon Properties it is clear that they are not letting agents as such, they are part of the burgeoning rent to rent brigade; happy to take their cut but of course never the landlords! Hopefully new HMO regulations will start to impact on such agents.

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  4. suzainkartic

    Credit has to be given for that decision. I have got these certificates 2 times late than they offer. But someone really needs to know how to get ready for a gas safety inspection. I think this piece will help a lot of people.

    https://www.landlordsafetycertificate.co.uk/blog/how-to-get-ready-for-a-gas-safety-check/

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