On the 8th February 2018, at an appeal hearing in front of His Honour Judge Luba in the Central London County Court, the Judge ruled that if a current gas safety certificate was not served on the Tenant BEFORE they took up occupation of a property then any Section 21 Notice cannot be relied upon. It is an unusual ruling but unfortunately one that is correct as his Honour referred back to the original Gas Safety Regulations in 1998 where it does indeed say that the Tenant must be provided with a copy of the current gas safety certificate before they occupy the property.
Deregulation Act Rules
This ruling applies to all written agreements – be they first agreements or written renewals – after the 1st October 2015. From 1st October 2018 it will apply to all AST’s irrespective of when they began. It is not a Court of Appeal ruling but a County Court ruling. However, because it was heard before a Circuit Judge and the only place that Circuit Judge’s sit in London is at the Central London County Court, the London Courts have decided that this ruling is binding in all London Courts. It is only a matter of time before it goes nationwide with all Courts taking a similar stand.
It is therefore imperative that if you are serving a Section 21 Notice on a tenancy that is affected by this ruling you check to ensure that the gas safety certificate was given to the Tenant before they took up occupation of the premises. If it was not it is a breach that cannot be rectified. These are HHJ Luba’s own words.
This effectively means that a lot of Assured Shorthold Tenancies out there will be treated as if they are Assured Tenancies and possession using Section 21 will be impossible. We have investigated whether the matter can be rectified by serving the certificate upon renewal or when the tenancy rolls over. However, we are of the opinion that this course of action will not be sufficient because of the wording of the initial Gas Safety Regulations which state at Paragraph 6 (b) of Section 36 : 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.
We are of the opinion that this can only be rectified by the introduction of new legislation.
In the interim we can only suggest that you proceed with caution when serving any Section 21 Notice and if it is one that is affected by this ruling, the Client is advised at the earliest opportunity of the possibility of failure should the Tenant’s not vacate in accordance with the expired Notice. Section 8 Notices are not affected by this ruling so these Notices can be proceeded on if there is a breach of tenancy.