Landlords beware – failure to provide a gas safety certificate at outset of tenancy can invalidate Section 21 Notice

Landlords cannot serve a valid Section 21 Notice to terminate an AST if they are in breach of a prescribed requirement. The prescribed requirements currently apply to ASTs entered into on or after 1 October 2015. From 1 October 2018, however, they will apply to all ASTs. The prescribed requirements are set out in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 and include a requirement to comply with the Gas Safety (Installation and Use) Regulations 1998 (‘the Gas Safety Regulations’) by providing a Gas Safety Certificate to a tenant.

The Gas Safety Regulations require the landlord to provide the Gas Safety Certificate before the tenant occupies the property, for all new tenants.

It was common practice for landlords to serve the Gas Safety Certificate either at the outset of the AST or at some point prior to the service of a Section 21 Notice. However, in the recent case of Caridon Property Ltd. V. Monty Shooltz (February 2018), the Court has confirmed that approach is incorrect.

In that case, the landlord served the Gas Safety Certificate 11 months after the start of the AST but before the service of the Section 21 Notice. The County Court Judge held that the Section 21 Notice was invalid by reason of the failure to serve the Gas Safety Certificate at the outset of the tenancy. The case was appealed and the Appeal Judge upheld the decision of the County Court Judge.

Whilst not technically binding, this decision is likely to have a persuasive effect. Therefore, landlords should ensure that they comply with the prescribed requirements and provide the prescribed information to each tenant, including a copy of the Energy Performance Certificate, Gas Safety Certificate and How to Rent Booklet, at the start of the tenancy before the tenant moves in. Landlords and their managing agents should also keep clear records of the service of those documents and receipt by each tenant to ensure that sufficient evidence can be provided in any subsequent possession proceedings.

As matters currently stand, where a tenancy is granted on or after 1 October 2015, any Section 21 Notice served is likely to be invalid if a landlord fails to serve the Gas Safety Certificate on the tenant before the start of the tenancy or cannot provide sufficient evidence of service prior to the start of the tenancy. In those circumstances, the landlord will need to consider other options for obtaining possession. For example, a landlord may serve a Section 8 Notice based on one of the fault grounds such as rent arrears.