Keith Chipato discusses the case in which he successfully defended a tenant in a possession claim under the accelerated procedure. The case centred on whether a landlord’s failure to provide a gas safety certificate before the tenant’s occupation invalidated a subsequent section 21 notice.
This decision underscores the importance of adhering to procedural requirements under housing law and serves as a reminder of the potential pitfalls for landlords who overlook them.
Background
The tenant had lived in the property since approximately February 2020 (when it had been owned by the initial landlord). In January 2021, the property was sold to the tenant’s current private landlord.
The new landlord and the tenant signed a new assured shorthold tenancy agreement on 15 January 2021.
The landlord had a gas safety check carried out at the property on 29 January 2021, 2 weeks after the tenancy agreement had started.
In October 2023, the landlord served a section 21 notice and later issued possession proceedings, which the tenant challenged on procedural grounds.
Proceedings
At the hearing, the landlord produced witness statements stating that the tenant had Covid and had refused access on 12 January 2021. Therefore, the earliest an inspection could be undertaken was 29 January 2021. Also, no gas safety certificate had been provided as part of the auction pack when buying the property.
The tenant stated that she had not received any gas safety certificates until 26 October 2023, and even then, only received the one dated 29 January 2021.
Legal framework
A landlord is prevented from serving a section 21 notice, if the prescribed requirements in s.21A of the Housing Act 1988 are not complied with. The prescribed requirements are defined within the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.
These requirements include that a landlord must provide a valid gas safety certificate that was in place prior to the tenant’s occupation of the property, as per Regulation 36(6)(b) of the Gas Safety (Installation and Use) Regulations 1998.
The court’s decision
The judge ruled that the timing of the gas safety certificate was critical. Despite the landlord arguing that the delay of the gas safety certificate in January 2021 was due to the tenant’s illness (Covid-19), the judge found this was irrelevant to the statutory requirement. In any event, the key issue was that no gas safety certificate had been provided before the tenant’s initial occupation in February 2020.
The judge found support in Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760 where late compliance with regulation 36 of the 1998 Regulations was deemed sufficient. But in this case, there was no evidence that a gas safety certificate had been provided at all before the tenant occupied the property.
Therefore the judge dismissed the possession claim and awarded the tenant costs.
As a result, timing is everything
Issuing a gas safety certificate at the time when a tenant first occupies the property is required and entering into a new tenancy agreement does not defeat this requirement. While late compliance is sufficient, failure to serve one altogether is likely to mean that a landlord cannot serve a s.21 notice at all.
Therefore, any landlords buying properties with tenants in situ need to ensure that there is at least a gas safety certificate in place before the tenant’s occupation as part of their due diligence.