Letting out a Property on an Assured Shorthold Tenancy

 

Guest Blog: Letting out a Property on an Assured Shorthold Tenancy?

Ignore Gas Safety Regulations At Your Peril

Blog written by Nathalie White, Assistant Solicitor https://www.colmancoyle.com/

The legal requirement to provide the tenant with a valid gas safety certificate prior to moving into a property has been in place since 1998. It is fair to say this requirement hasn’t always been strictly adhered to. Even though the majority of landlords carry out the required 12 month check on any relevant appliances, it is not widely known that a copy of the gas safety certificate must be given to the tenant prior to occupation, if the gas appliance is located in the property. It is even less well known, that if the appliance in question is not in the property, the landlord must at least display the gas safety certificate in a prominent position in the property.

New legislation which came into force in 2015 linked the requirement to provide a gas safety certificate to the tenant with evicting the tenant following service of a section 21 notice (a 2 month notice which can be served to start the eviction process). In simple terms, landlords must have given an up to date gas safety certificate to the tenant before serving a section 21 notice, otherwise they couldn’t evict the tenant using this type of notice.

Landlords therefore made sure, before serving a section 21 notice, they obtained and gave to the tenant a copy of the up to date gas safety certificate. Easy enough to follow and the Courts were happy to go along with this interpretation of the law (as long as the landlord had complied with all the other numerous requirements).   

In 2018 however, following one case, everything changed. The Court completely revised their approach and decided that the law actually required the landlord to have given a valid gas safety certificate prior to the tenant occupying the property, and not as they previously thought, before serving the section 21 notice.

This may seem like a minor change in interpretation, however in reality, it meant that landlords who hadn’t complied before their tenant first moved in, could never evict their tenant using a section 21 notice. To be clear, there are various other notices which can be served, however they require a reason (referred to as a ground) to evict the tenant. The beauty of a section 21 notice is that the landlord doesn’t need to have a reason to want his or her property back. It is also arguably a lot harder for a tenant to defend as long as the landlord has complied with all the requirements.

Understandably various practitioners, landlords and managing agents were astounded that such a decision could be reached and there was widespread understanding that this was clearly an oversight when the legislation was drafted. Surely the law would be swiftly rectified if the decision was not overturned? It appears not.

There have been no amendments to the legislation and, given the current political climate (yes I mean Brexit), it doesn’t look as if any changes to the law will be forthcoming.

Though the case which created this issue is not technically binding on all courts, the decision continues to be upheld by judges across England. Only last month an unreported case was successfully appealed by a tenant regarding a property in Exeter on similar grounds. This new case however clarified an issue which hadn’t been dealt with in detail in 2018. Without getting into the technicalities, the Court specifically asked the question; could a landlord serve a section 21 notice if they had not displayed a valid gas safety certificate, in the property in a prominent position, before the tenant had occupied the property when the gas appliance in question was outside the property?  The answer was a resounding no.

In this case, the pipes from the boiler provided hot water to the property, therefore even though the boiler was outside the property, the rules applied. The judge was clear. The whole purpose of this change in the law, was to ensure that the tenant could make an informed decision, and have peace of mind that the property they are living in was safe.

There are some exceptions to the rules, however, they are very limited and it is more likely than not that the law will apply to most Assured Shorthold Tenancies.

The lesson to be learned? It is apparent this requirement isn’t going away any time soon. If ignored, the consequences of doing so will likely be very costly… as no doubt the landlord in this case quickly discovered.

Our thanks to Richard Cherry of 1 Chancery Lane, who was counsel for the appellant for contacting Colman Coyle in respect of his case.

The purpose of this blog is to provide information. Nothing on this blog should be relied upon as a substitute for legal advice from a qualified solicitor regarding any actual legal issue or dispute. Nothing on this website should be construed as legal advice or perceived as creating a solicitor-client relationship.

 

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