Gas safety case offers good news for landlords
Tenants can often use the non-issue or expiry of a gas safety certificate as a defence against eviction – but a recent case shows otherwise.
Coronavirus restrictions have prevented many engineers from carrying out essential gas safety checks in rented properties. Many visits were delayed for weeks, causing some safety certificates to expire. This is especially the case where residents are self-isolating or an occupier is deemed vulnerable.
Residents have been quick to catch on – with some using the expiry of gas safety certificates as a defence against eviction (section 21) proceedings.
What does the law say?
The Gas Safety Regulations 1998 compels landlords to provide tenants with a yearly gas safety certificate. Historically this must have been done before the tenant began occupying the property in accordance with Housing Act 1988 (as amended by the Deregulation Act 2015).
Before now, a tenant could contest possession proceedings if they could prove the landlord hadn’t provided one before the tenancy started. Ultimately this could stop the landlord from obtaining a possession order – and thus be prevented from successfully seeking possession under ‘no fault eviction’ laws.
Tenants who launched a defence against proceedings on the basis that no gas safety certificate was issued at the beginning of the tenancy (prior to physically moving in) often relied on precedent set by Caridon Property Ltd v Monty Shooltz 2018.
The facts of the case were that the landlord let a flat to the tenant on an AST. The Landlord did not serve the gas safety certificate until 11 months into the tenancy. The landlord then served a Section 21 Notice on the tenant. The landlord’s claim for possession was dismissed as the landlord had not complied with the prescribed requirements set out in the Housing Act 1988. The landlord then appealed. In this case, the decision in favour of the tenant, on appeal, was based on the assertion that landlords have a “once and for all” opportunity to provide the tenant with a certificate at the outset. Even if a landlord later issued the certificate, the initial failure to do so was the important factor. Whatever the later remedy by the landlord, the certificate should always be available before the tenancy.
This has sometimes left landlords unable to successfully recover possession under Section 21 – and may have had to resort to Section 8 proceedings (this is where a landlord relies on one of the “fault” grounds set out in schedule 2 of the Housing Act 1988, such as non-payment of rent).
New case law
That 2018 decision has recently been turned on its head. In Trecarrell House Ltd v Rouncefield  EWCA Civ the landlord let a flat to the tenant on an AST. The landlord did not serve the gas safety certificate until 9 months into the tenancy, the certificate was dated one month prior to the tenancy starting. Several months later the landlord served a Section 21 Notice on the tenant. Although the tenant defended the proceedings on the basis that no gas safety certificate had been provided prior to taking occupation, the landlord’s claim for possession was granted. The tenant then successfully appealed against the possession order. The Court of Appeal granted the landlord permission to appeal.
The tenant also asked the Court of Appeal to consider the fact that a further gas safety check has been carried out during the tenancy and that no gas safety certificate had been provided in respect of that test. The landlord argued that the certificate had been served prior to the Section 21 Notice. The Court of Appeal has referred this part of the case back to the County Court but had some interesting comments about the timing of gas safety checks.
The Court of Appeal ruled in favour of the Landlord that as long as the gas safety certificate is provided to the tenant before a Section 21 Notice is served, then that landlord may successfully seek possession of the property. The important factor here being that the certificate was provided – albeit later than mandated.
What this means for landlords
The judgment appears to somewhat protect landlords who couldn’t get engineers to carry out a gas safety check during lockdown, provided that the landlord serves the gas safety certificate before serving a Section 21 Notice. The comments of the Court of Appeal that a landlord’s failure to carry out a safety check within 12 months of the last one does not mean the landlord cannot comply the prescribed requirements once the check has been carried out, will come as a great relief to landlords.
However, one question remains. While this appears to give landlords a ‘second chance’ to secure a certificate before serving a Section 21 Notice, what happens if a certificate is not issued at all? Do the pandemic restrictions still provide some level of protection against a tenant defence? We’re looking closely at further developments on this, so watch this space for updates.
Need advice? Just ask
Our team of landlord and tenant solicitors are here to help you. Just ask. For more information on this or any related issue, you can contact Olivia Macken on email@example.com, call her on 01472 253956 or visit wilkinchapman.co.uk