Note – this decision has now been overturned by the Court of Appeal – see the report here.
A year ago I reported the case of Caridon Property Ltd v Monty Shooltz. This held that, for tenancies which started or were renewed on or after 1 October 2015, when a landlord fails to serve a gas safety certificate on tenants before they occupy the rented property – they will be unable to use section 21 of the Housing Act 1988 to evict those tenants.
Effectively this will turn the tenancy into an assured tenancy where tenants have long term security.
The government have indicated that they are not minded to change the legislation, so the only way this rule can be changed is if the Court of Appeal or the Supreme Court take a different view.
We have now had a decision on a different section of the Gas Regulations which comes to the same conclusion. This is in the case of
Trecarrel House Limited v Rouncefield
Which was a decision at Exeter County Court on 13 February 2019.
The proceedings were possession proceedings under section 21 in respect of a self-contained flat where the heating was provided by a boiler situated outside the flat. No gas safety certificate was served on or displayed in the property before the tenants moved in. The full details of the case are reported on Nearly Legal.
In essence, this case is about the situation covered in s.36(7) of the Gas Regulations. This comes into effect where there are no actual gas appliances in the property being let but where there is gas in the building. The wording of the section is
(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.
You will see the section refers to ‘paragraph 6 above’ which is the paragraph dealt with in the Caridon Property case – the paragraph which says that the gas certificate must be served on the tenants before they occupy the property.
The decision of the court
The Judge at first instance had said that the gas regulations were not engaged as the pipes in the rented property carried water, not gas, and that he did not think Parliament would have intended any breach to be impossible to remedy.
The Appeal Judge disagreed. His reasons were as follows
- Gas can be very dangerous and it is important that, before tenants occupy a property, they can satisfy themselves that the property is safe
This is why it is essential that the gas safety certificate is served before the tenants move in
- Subsequent gas safety certificates are less important as the tenant will already have had the assurance of safety from the initial certificate
- Had the government felt that the Carridon case was incorrect the Gas Regulations could have been amended in 2018 when other amends were done
- The changes to the law in 2015 had come about because the original regulations had lacked ‘teeth’ – and no landlord loses the ability to use section 21 unless they have failed to provide essential safety information to tenants
Although this is just an appeal from a County Court decision and so far as I am aware is not binding, I suspect it will be followed now. Unless a landlord is prepared to risk the cost of challenging it.
This case, and the Caridon case, are prime examples of why landlords should not manage properties themselves unless they have undergone basic training and are aware of their legal obligations.
Gas safety is extremely important, people have died in the past. Which is why it is critical that a gas safety certificate is obtained and given or shown to tenants before they move in.
Unless and until these matters are decided differently in the Court of Appeal or the Supreme Court, Landlords who fail to comply with sections 36(6) and 36(7), by failing to provide the gas safety certificate to tenants before they move into the property, will lose the right to use section 21 to evict their tenants.
This rule does not apply to tenancies which started before 1 October 2015 and have not been renewed since then.
So those landlords should, unless they can prove service of the gas safety certificate before their tenants initially occupied the property, allow the tenancy to continue as a periodic and should not give the tenants a new tenancy agreement or renewal form.