My client owns a flat which he lets out and, on 30 September last year, he granted a 12-month assured shorthold tenancy of the flat. The annual gas safety inspection had been carried oubefore the AST was granted but my client forgot to provide the gas safety certificate to the tenants before they moved in and gave it to them a couple of days later. He now wants to end the AST and serve a section 21 notice. He has been told he cannot serve a section 21 notice because he provided the gas certificate to his tenants after they moved in. Is that correct?
No. Your client's failure to provide the safety certificate prior to his tenants moving in is not fatal, as long as he gave them the certificate before he served the notice.
Following the introduction of the Deregulation Act 2015 and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, residential landlords have had to comply with various regulatory obligations before they can serve a valid notice under section 21 of the Housing Act 1988. These include the need to furnish tenants with a gas safety certificate prior to the tenant moving in (regulation 36(6)(a) of the Gas Safety (Installation and Use) Regulations 1998) and after subsequent gas safety checks are carried out in accordance with regulation 36(6)(b) of the 1998 Regulations.
The county court decided in Caridon Property Ltd v Shooltz (unreported, February 2018) that the failure to give the certificate prior to the tenant's occupation of a property let on an AST meant that a section 21 notice could never be served to bring the AST to an end. The effect of this would be that a landlord would have to rely on a tenant leaving voluntarily at the end of the tenancy or breaching the terms of the AST to be able to recover possession of the property based on notice under section 8 of the Housing Act 1988.
In June 2020, the Court of Appeal decided in Trecarrell v Rouncefield  EWCA Civ 760;  PLSCS 119 this was not correct. The time limits in both regulations 36(6)(a) and 36(6)(b) are disapplied. So the failure to provide the gas safety certificate prior to occupation is not fatal if the certificate is provided before service of the section 21 notice.
However, what the Court of Appeal did not decide in Trecarrell was what would happen if no gas safety inspection of a property let on an AST had been carried out prior to the tenant moving in. In those circumstances no certificate would exist and it is at least arguable the landlord could never serve a section 21 notice to bring the AST to an end.
My client owns a house and rents it out. He granted a one-year AST in August 2019. The annual gas safety inspection was due on 30 March 2020 but, as a result of the Covid-19 pandemic, he was unable to find a gas engineer to carry out the check and the tenants would not provide access to the property. The inspection was carried out late on 5 June 2020 and a paper copy of the gas safety certificate was immediately given to the tenants. He wants to serve a section 21 notice to bring the tenancy to an end. Is he prevented from serving a section 21 notice because the gas safety inspection was carried out late?
No. The fact that the gas safety inspection was late does not matter. As long as the certificate has been given to the tenants, then he will be entitled to serve a section 21 notice.
Landlords are under a duty to carry out gas safety inspections every 12 months under regulation 36(3)(a) of the 1998 Regulations. It had been suggested that this 12-month deadline was imported into regulation 36(6), so that the failure to carry out the inspection in time would mean that, indirectly, a section 21 notice could never be served.
The Court of Appeal rejected this argument in Trecarrell. The 12-month rule in paragraph (3)(a) of regulation 36 is not part of the prescribed requirements. A landlord is simply required to give existing tenants a copy of the gas safety certificate that contains all the information specified in regulation 36(3)(c). If the inspection has been carried out late then it does not matter for the purposes of section 21.
Given that the 12-month rule does not apply for section 21 purposes, it seems that a landlord who fails to do the subsequent annual inspection at all would still be allowed to serve a section 21 notice. It is to be remembered, however, that non-compliance with gas safety regulations is not a good idea because (a) your client may be putting your tenants and his property at risk; and (b) because there are criminal sanctions for non-compliance.
This article was first published in Estates Gazette on 6 July 2020.
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