Recovering Possession and the Gas Safety Certificate Trap Part 1

Unfortunately, the number of Landlords we come across who have failed to meet the requirement to provide a tenant a copy of the most recent gas safety certificate is shocking. Many Landlords prefer to deal with tenants directly instead of instructing an agent or property manager to enter into or renew tenancies on their behalf. Whilst this can save money at the outset, it can be very costly in the future if you do not get it right at (and actually before) the start of the tenancy.

The most notable case in this area is Caridon Property Ltd v Monty Shooltz (2018). This landmark decision confirmed that for tenancies starting on or after 1 October 2015, failure to serve a gas safety certificate on a tenant before they occupy the property means that the Landlord will be precluded from using a section 21 notice to gain possession of the property on no-fault grounds.  What’s more is that in the recent case of Trecarrel House Limited v Rouncefield (2019), it was confirmed that in these circumstances, the use of the section 21 route is forever lost – it cannot be rectified by serving an up to date certificate after the tenancy has commenced. So what does this mean for Landlords? Unfortunately, Landlords who find themselves in this situation will need to rely on other (and less straightforward or speedy) grounds for possession such as rent arrears, which could lead to a counterclaim.

But what about renewal tenancies? If your tenant has been living at the same property and has bee. provided with annual gas safety certificates, if the tenancy comes up for renewal (so technically speaking the start of a new tenancy) does the Landlord have to provide the certificate again to comply? Given that the tenant is already in occupation of the property, it is safe to say that it is not necessary to provide them with the same document again (although the Landlord must ensure that he or she was provided with the most recent gas safety certificate prior to renewal within 28 days of the gas safety inspection). However what if the existing tenant starts a new tenancy with another tenant or tenants (a new joint tenancy). Is it safe to assume that, by virtue of the existing tenant having been given a copy of the annual gas certificate, the incoming tenants have also been given notice?

Section 36(6) of The Gas Safety (Installation and Use) Regulations 1998 states that every landlord shall ensure a copy of the record made is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and 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.

A strict reading of the law suggests that any new tenant, regardless of whether they are joining an existing tenant or not, should be supplied with the gas safety record made. So in the situation whereby an existing tenant who has had notice is joined by an incoming tenant without notice, does this render the whole tenancy/flat incapable of the use of Section 21? Can you evict the one tenant with notice but not the one without?

Find out in Part 2.