Caridon Property Ltd v Monty Shooltz. Central London County Court. 2 February 2018 (See judgement here).
This was an appeal to a circuit judge of a first instance decision of District Judge Bloom. The circuit judge was HHJ Jan Luba QC (a very experienced housing lawyer and an author of the LAG Housing Law Caselaw books amongst others).
DJ Bloom had dismissed a possession claim by Caridon Property on the basis that at the time Caridon Property had served a section 21 notice on its tenant, Monty Shooltz, Caridon Property had not complied with the requirements of Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, in that a gas safety certificate had not been provided to the tenant at the start of the tenancy, before the tenant took up occupation. A gas safety certificate had been provided some 11 months later, purportedly shortly before the service of the s.21 notice.
Section 21A of the Housing Act 1988 (as amended by the Deregulation Act 2015) provides that for tenancies granted after 01 October 2015, a Section 21 Notice cannot be validly served on the tenant if the landlord is in breach of a “prescribed requirement”.
Some of the prescribed requirements are set out in The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (the “AST Regulations”). These Regulations list the requirement for a landlord to provide a tenant with a gas safety certificate in compliance with the Gas Safety (Installation and Use) Regulations 1998 (the “Gas Safety Regulations”).
Regulation 36(5) of the Gas Safety Regulations states that it is a statutory requirement for every landlord to 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.
However, Regulation 2(2) of the AST Regulations states that the time limit for compliance with Regulation 36(5) of the Gas Safety Regulations does not apply.
In this case, the court had to decide whether a landlord could validly serve a Section 21 notice if Gas Safety Regulation 36(5)(b) hadn’t been complied with at the start of the tenancy.
The question essentially was:
- i) Did Section 2(2) of the AST Regulations remove time limits for providing gas safety certificates in general?
HHJ Luba QC held
In my judgment, therefore, those words do not limit the impact of paragraphs 6 and 7 of Regulation 36 only to the scenario in which parliament is concerned with notice in relation to gas safety being given to existing tenants. Nor, in my judgment, is that understanding of Regulation 2(2) changed by the additional words “and the 28 day period…”. In my judgment, what those words mean is that where a landlord is seeking to say he or she has complied with the variant of paragraph 6 or 7 relating to an existing tenant that then the 28-day period for compliance with the requirement to give notice to an existing tenant does not apply.
So, s.36(6)(b) of the Gas Regulations had to be complied with at the commencement of the tenancy and before the tenant took up occupation of the property.
HHJ Luba QC found:
in my judgment, that cannot sit appropriately with the obligation in the GS Regs for notifications to either be given or displayed prior to the taking up of a tenancy by an incoming tenant. That seems to me to have been a ‘once and for all’ obligation on a prospective landlord in relation to a prospective tenant. Once opportunity has been missed, there is in my judgment no sense in which it can be rectified. If the Minister believed that that ‘once and for all’ cut off should not debar a landlord from serving a Section 21 notice, it was open to the SoS to simply disapply those parts of Paragraphs 6 and 7 of Regulation 36 in express terms in what has become Regulation 2(2).
This means that with immediate effect, landlords and agents should take the following actions:
1 Ensure that in all cases, tenants are provided with a gas safety certificate in advance of the start of the tenancy and before the tenant takes up occupation of the property. If the tenancy will be a joint one, the gas certificate should be issued to all prospective tenants.
2 Keep a detailed note of the date and time of issue of the gas certificate. Where possible have the tenant sign and acknowledgment of the gas safety certificate and other documents which have been provided to them.
HHJ Luba QC notes:
It may be observed, simply in passing, that in the most recent edition of the handbook ‘Defending Possession Proceedings’ – widely referred to by the first instance judiciary when dealing with possession cases, the authors of whom I am one – have written at paragraph 10.50 that “…if the latest gas safety certificate was not given to the tenant before he or she occupied, this is a breach which cannot be rectified… although this may not have been the legislative intention.
This judgement is a county court appeal and therefore not binding on the county courts. Notwithstanding this It’s also worth noting that the judgment is a decision of one of the country’s leading housing lawyers. HHJ Luba is also one of the authors of “Defending Possession Proceedings”, which is the textbook that most District Judges have on their benches to consult when deciding housing cases.
It may be that the AST Regulations will be amended following this judgement or that this issue will be heard by a Court of Appeal. But for now, any landlord who did not provide the gas safety certificate at the start of the tenancy, before the tenant moved in, is likely to find that they cannot serve a section 21 notice during the period of that tenancy.
Also note that the AST Regulations apply to all Assured Shorthold Tenancies from 01 October 2018 and not only post 01 October 2015 tenancies.