A county court has recently ruled that landlords will be unable to terminate an Assured Shorthold Tenancy (AST) through a section 21 notice if they fail to provide a gas safety certificate at the start of a tenancy. Residential Possession specialists Mike Hansom and Emily Thorp consider the implications of the case.
Whilst not creating a binding precedent, the court in this most recent case, Trecarrel House Limited v Rouncefield, followed a decision last year in the case of Caridon Property Ltd v Monty Shooltz. These cases highlight the technical procedures that landlords must follow to ensure they do not lose their ability to use a section 21 Notice.
It serves as a reminder to all landlords to ensure they are aware of their legal obligations, or to use an experienced agent.
Deregulation Act 2015
As discussed in our earlier article, from 1 October 2018, the Deregulation Act 2015 brought into force a number of regulations affecting residential tenancies. As well as protecting a tenant’s deposit and providing the tenant with the ‘prescribed information’, landlords are also required to provide an EPC and Gas Safety Certificate to the tenant. Assuming these cases have been decided correctly, these documents must be provided before the tenant takes occupation of the rented property.
Until there is a ruling in the higher courts, it is safest to assume that these recent county court judgments will be followed in your own local county court.
In Trecarrel, the appeal judge reasoned that a tenant moving into a property needs to be sure the gas system is well maintained and safe. Prior to these cases it had been widely assumed by many landlords that the gas safety certificate could be served later than the outset of the tenancy, so long as it was served before the section 21 Notice. That now appears to be wrong.
These two cases imposed a severe penalty and provide a warning to landlords and their agents to ensure they comply with the necessary requirements or they will lose their ability to use a section 21 notice. Until a higher court provides clarity, we recommend that landlords and their agents comply strictly with the statutory requirements relating to provision of a gas safety certificate and EPC before the tenancy begins and before a replacement tenancy is entered into. Failure to do so risks being stuck with a tenant they cannot evict unless they can rely on the section 8 grounds. This often requires the landlord to prove the tenant is in breach of the tenancy.
How can we help?
Our team can assist landlords and tenants alike with all aspects of the residential possession process. For more information or advice, please contact Emily Thorp at email@example.com or Mike Hansom at firstname.lastname@example.org . Alternatively, you may call them on 01225 462871.