A series of articles looking at the new rules regarding section 21 notices – applicable in England only – for tenancies created after 1 October 2015.
This article follows on from my previous post on Energy Performance Certificates.
This is the second of the pre-requisites to serving a valid section 21 notice and appears in the regulations which say that this requirement is contained in
paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (requirement to provide tenant with a gas safety certificate).
So, let’s have a look at the Gas Regs.
Regulation 36 is the one which sets out the duties of landlords. Here are the regs (I include reg 36(5) as it is referred to in reg 36(6)):
(5) The record referred to in paragraph (3)(c) above, or a copy thereof, shall be made available upon request and upon reasonable notice for the inspection of any person in lawful occupation of relevant premises who may be affected by the use or operation of any appliance to which the record relates.
(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.
(7) Where there is no relevant gas appliance in any room occupied or to be occupied by the tenant in relevant premises, the landlord may, instead of ensuring that a copy of the record referred to in paragraph (6) above is given to the tenant, ensure that there is displayed in a prominent position in the premises (from such time as a copy would have been required to have been given to the tenant under that paragraph), a copy of the record with a statement endorsed on it that the tenant is entitled to have his own copy of the record on request to the landlord at an address specified in the statement; and on any such request being made, the landlord shall give to the tenant a copy of the record as soon as is practicable.
What are ‘relevant premises’?
“relevant premises” means premises or any part of premises occupied, whether exclusively or not, for residential purposes (such occupation being in consideration of money or money’s worth) under—
(a) a lease; or
(b) a licence;
The Big Question
The big problem I expect many landlords will be asking themselves is “what happens if the tenant won’t let me in to do the inspection?”
Because barmy though it seems (gas inspections being for the benefit of tenants so they won’t get blown to smithereens in a gas explosion) some tenants won’t let landlords in.
This is why we have landlords applying for what are known as ‘gas injunctions’ – very common in the social housing sector.
Contrary what many private landlords seem to think, neither the Gas Regulations nor any tenancy agreement clause allows the landlord to enter to do the work against the tenant’s wishes.
Are we now going to have a situation where tenants will be able to prevent landlords from evicting them under section 21 by refusing them access so they can’t get the gas inspection done?
I think the answer to this has to be ‘no’. It would of course, be completely unjust if the answer was ‘yes’ and I think the courts would probably refuse to allow such a defence anyway as it is self-serving.
However, this must be why the section 21 regs go on to say
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.
If this means what I think it means, it will be sufficient (for the purposes of the section 21 regulations) if the landlord gives the tenant the certificate which was done before the tenancy started.
There is no excuse then for landlords not to get an inspection done then as the property will normally be empty, for at least some period, between tenants.
The section 21 regs talk about ‘a gas certificate’ (ie just the one) rather than ‘an annual gas certificate’ or similar wording, so this is some support for this view.
However, we won’t really know for sure until this is tested in the courts.
NB If YOUR tenant won’t let you in to do the gas inspection, I have a guide here.