Failure to provide Gas Safety Certificate before Residential tenancy occupation prevents possession claims

Two recent cases have confirmed that, in England, a residential landlord who fails to provide to his tenant a gas safety certificate in respect of any supply of gas to the property before occupation pursuant to an assured shorthold tenancy under the Housing Act 1988 (“the 1988 Act”) cannot subsequently successfully terminate the tenancy under section 21 of the 1988 Act, even if he provides such a certificate before serving the requisite notice seeking possession.

Under The Gas Safety (Insulation and Use) Regulations 1988 (“the 1988 Regulations”):

• (i)         Regulation 36(6) requires every landlord to provide a copy of the last gas safety record (being the certificate) to any new tenant of property to which the record relates before the tenant occupies the property and to any existing tenant within 28 days of the date of the gas safety certificate being provided to him.
• (ii)         Regulation 36(7) provides that where there is no relevant gas appliance in any room to be occupied by the tenant in the property then the landlord may, instead of complying with Regulation 36(6), ensure that a copy of the certificate is displayed in a prominent position in the property but from such time as a copy would have been required to been given to the tenant under Regulation 36(6).

This above is fairly clear but it was considered that the 1988 Regulations did not have sufficient “teeth” in terms of ensuring compliance with them by landlords. This led to section 21A of the 1998 Act, which prevented service of the requisite valid two months’ notice under section 21 seeking possession of the property from the tenant (that being the process used where the tenant is not at fault) where the landlord is in breach of any “prescribed requirement”. Such prescribed requirements include those requirements under the 1988 Regulations by virtue of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the 2015 Regulations”).

The 2015 Regulations confirmed that, whilst the landlord was still required to give a copy of the relevant gas safety certificate to the tenant, it confirmed that “the 28 day period of compliance with that requirement does not apply”. However, the 2015 Regulations indicate that the disapplication of the 28 day period refers to the obligation of giving the certificate to an existing tenant and not new tenants. The question thus arose as to whether a landlord had to provide a copy of that certificate to a new assured shorthold tenant before they occupied a property, notwithstanding this, as opposed to at some point afterwards and in disregard of any 28 day period.

Firstly, in the case of Caridon Property Limited v Shooltz (February 2018) Circuit Judge Luba held that, under Regulation 36(6), the landlord could not serve a valid section 21 Notice as he had not provided the tenant with a copy of the certificate before the tenant occupied the property and he could not remedy that breach even in respect providing it or further certificates later than this. This meant that a landlord could not seek to recover possession by ending the assured shorthold tenancy save by relying on a fault ground of the tenant under section 8 of the 1988 Act and it had the practical effect of turning an assured shorthold tenancy into an assured tenancy. (This is the equivalent of a tenancy under the old Rent Acts, giving lengthy secure of tenure to tenants before the change brought about by the 1988 Act in introducing the concept of assured shorthold tenancies.) Caridon is not binding on other courts as it is a county court decision. However, it indicated the direction of travel as to how court might interpret the landlord’s obligations.

Secondly, in Trecarrel House Limited v Rouncefield (February 2019) Circuit Judge Carr came to the same conclusion, albeit in assessing the obligations of the landlord under Regulation 36(7) (as the landlord has not complied with Regulation 36(6)) in his having failed to display any gas safety certificate record in the property about a gas appliance present outside of the property but servicing the same and carrying water that had been heated up by an external gas boiler rather than actually carrying gas in those pipes.

Again the Trecarrel judgment is not binding, as it is a county court judgment but it is likely that future cases may be decided in the same way or any potential appeal in such cases up to the high court will approve those decisions.

It is understood that, despite lobbying by the National Landlords Association to the government, it has been told that the government does not intend to legislate to reverse the effect of these decisions and so there is unlikely to be any way around this for landlords for the foreseeable future, if at all. This may also lead to future decisions being consistent with those made so far. So, in the meantime, a clear message for any residential landlord with assured shorthold tenants in properties with gas supplies is to ensure compliance by providing a gas safety certificate record before any assured shorthold tenancy begins and a tenant first occupies the property because such a breach of the Regulations cannot subsequently be remedied and possession then obtained under section 21. In such a case, the landlord may be prevented from seeking possession indefinitely unless he can prove that the tenant is at fault and rely on possession under section 8 of the 1988 Act instead.

Update:

On an application for permission to appeal the decision against the landlord in the Trecarrell House case, the Court of Appeal has given permission so that a hearing of the appeal itself will now take place. The outcome, which will not likely be known for several months until a hearing has been listed and judgment given, will be keenly awaited by landlords and tenants alike but, in the meantime and unless the appeal succeeds, the position  for landlords is as set out in the article above.