Failure of a landlord to serve a gas safety certificate on the tenant of an AST prior to tenancy

A recent appeal case has ruled and clarified this point in Caridon Property Ltd v Monty Shooltz. Central London County Court in February 2018

A recent appeal case in the Central London County Court has reached an important ruling on the issue of the consequences of failing to serve a gas safety certificate on a tenant prior to his or their move-in date. 

The long and short of it is that a landlord may not cure the defect of failing to provide a gas safety certificate before the tenancy begins or the tenant moves in. 

This is the case even it is provided before the service of any eviction notices under section 21 of the Housing Act 1988 - at least not until the tenancy comes to be renewed whether by a new tenancy of on a rolling monthly basis afterwards.

The decision is not technically binding on upper courts (like the High Court and Court of Appeal), but is widely believed to be correct amongst legal academia and likely to be followed by all other courts.

Background

The landlord had not complied with the requirements of Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, in that a gas safety certificate had not been provided to the tenant at the start of the tenancy and before the tenant took up occupation.

A gas safety certificate had been provided some 11 months later, apparently shortly before the service of the s.21 notice.

The relevant provisions are that section 21A Housing Act 1988 (as amended) states.

“(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.

The prescribed requirements are, in part, found in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015

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

(a) (….), and

(b) paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998(3) (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.

And then the Gas Safety Regulations 1998 state at 36(6) – the relevant section:

(6) Notwithstanding paragraph (5) above, every landlord shall 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.

So, the questions were:

i) Did Section 2(2) of the AST Prescribed Requirements regulations disapply time limits for providing gas safety certificates in general?

ii) Does the secondary legislation (the Regs) contradict the primary legislation (the Housing Act 1988)?

iii) Should a purposive reading of the regulations be applied to avoid an absolute bar on service of a section 21 notice?

On i) the Appeal Judge His Honour Luba QC held:

“In my judgment, therefore, those words do not limit the impact of paragraphs 6 and 7 of Regulation 36 only to the scenario in which parliament is concerned with notice in relation to gas safety being given to existing tenants. Nor, in my judgment, is that understanding of Regulation 2(2) changed by the additional words “and the 28 day period…”. In my judgment, what those words mean is that where a landlord is seeking to say he or she has complied with the variant of paragraph 6 or 7 relating to an existing tenant that then the 28-day period for compliance with the requirement to give notice to an existing tenant does not apply.”

So, the Gas Regs s.36(6)(b) requirement had to be complied with at the commencement of the tenancy.

On ii) it was not legitimate to seek the purpose of the regulations in the Housing Act 1988 as originally enacted.

“Any other interpretation of the Regulations would leave it open to the landlord to give a Section 21 notice even where the landlord has let what at the time may have been dangerous and unchecked premises that may have fallen foul of the GS Regs. “

The judge ruled that failure to supply the gas safety certificate was a ‘once and for all’ obligation on a prospective landlord in relation to a prospective tenant and could not be later cured. 

Once the opportunity has been missed, there was in his judgment “no sense in which it can be rectified”. 

The judge went on to say that: “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 secretary of state to simply disapply those parts of Paragraphs 6 and 7 of Regulation 36 in express terms in what has become Regulation 2(2)” [but he did not].

Conclusion

Until parliament intervenes again, any landlord who did not provide the gas safety certificate at the start of a post 1 October 2015 tenancy, before the tenant moved in, is likely to find that they cannot serve a section 21 notice, at least during the period of that tenancy. 

They may be able to do after or if a new tenancy is entered into or an old one renewed automatically provided a Gas Safety Certificate is then provided before the renewal date of each renewal period.

Please note – This briefing note applies to Assured Shorthold Tenancies on or after before 1 October 2015. It contains the position as of the date it is published and is not intended to be a substitute for specific legal advice and must not be relied on as such. Any cases cited may be subject to later appeal.