Landlord discontinues re-litigating a claim for possession after failing to provide the tenant with a gas safety certificate before their occupation: major implication for the Private Rented Sector

Tuesday 27 February 2018

Tim Baldwin, of the Garden Court Chambers Housing Team, was instructed by Matt Sinden of SSP Law Solicitors.

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Tim Baldwin represented the defendant tenant, occupying under an Assured Shorthold Tenancy, in the case of Assured Property Services Ltd v OOO (Edmonton County Court) Claim no D7PP0461 which was to be heard on 23 February 2017 but the claimant served notice to discontinue the claim on 21 February 2018.

The importance of this case is that it confirms that when no gas safety certificate had been served prior to occupation of a property let to a tenant under an Assured Shorthold Tenancy, the landlord had contravened Regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998. This omission invalidated the section 21 notice by virtue of Regulation 2(1)(b) of the Assured Shorthold Tenancy Notices and Prescribed Requirements Regulations (England) 2015 and effectively prevented the Landlord from ever using a section 21 notice to recover possession under an existing tenancy agreement and confirmed that a gas safety certificate can only be served once at the beginning of the tenancy which could have major implications for the Private Rented Sector if not changed by the Court of Appeal.

Tim Baldwin, together with Alex Grigg, had previously represented the same defendant in the case of Assured Property Services Ltd v OOO (Edmonton County Court) in a previous claim D00ED913 on 12 May 2017 reported in LAG Magazine September 2017, p 31 and by Nearly Legal. This case concerned an assured shorthold tenancy granted to the same defendant in discharge of a homelessness duty. As the tenancy commenced after 1 October 2015 it is subject to the amendments of section 41 Deregulation Act 2015. Section 21A Housing Act 1988 (as amended) provides that a notice under section 21(1) or section 21(4) Housing Act 1988 may not be given in England at a time when the claimant landlord is in breach of the “prescribed requirements” under section 21A.

The prescribed requirements are specified in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (SI No 1646), which require the landlord to provide the tenant with a copy of

(i) A gas Safety Record in accordance with regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998;

(ii) An energy performance certificate in accordance with regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012;

Regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 requires the landlord to give:

(a) A copy of the gas safety record to each existing  tenant of premises to which the record relates within 28 days of the date of the gas safety check; and

(b) A copy of the last gas safety record made in respect of each appliance or flue to any new tenant of the premises before the tenant occupies those premises.

The failure to provide a gas safety certificate and/or an energy performance certificate in accordance with these regulations will constitute a complete defence to any possession proceedings based on a section 21 notice.

On 2 May 2017 District Judge Cohen made a possession order under the Accelerated Procedure following service of a section 21 notice. The order of District Judge Cohen provided that, as it was made without a hearing, it could be set aside on an application by either party within 14 days of its service. The tenant, Ms OOO, submitted an application on the basis that no gas certificate was provided at the outset of the tenancy (or subsequently). There were also complaints about the functioning of the gas central heating system.

At a hearing before District Judge Lethem at Edmonton County Court on 12 May 2017 the landlord accepted that they had not supplied a gas certificate at the outset, but contested the claim that one was never served, and denied that the heating system was defective.

DJ Lethem held that where the landlord had accepted that no gas safety certificate had been served prior to occupation of the premises by the tenant, the landlord had contravened Regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998. The judge held that this omission invalidated the section 21 notice by virtue of Regulation 2(1)(b) of the Assured Shorthold Tenancy Notices and Prescribed Requirements Regulations (England) 2015. DJ Lethem granted Ms OOO’s application, setting aside the possession order and dismissing the claim for possession with an award of costs to the tenant.

The claimant did not appeal this decision or otherwise apply to set it aside but almost immediately served another section 21 notice and issued a claim on 17 August 2017 claiming they had provided a gas safety certificate prior to the defendant going into occupation. The defendant defended the claim on the basis of the previous Court order and evidence and contended the re-issue was an abuse of process with the claim being listed for hearing on 23 February 2018.

However, on 2 February 2018 in an appeal before HHJ Luba QC in Caridon Property Ltd v Monty Shooltz (Central London County Court) 2 February 2018 (on the Nearly Legal website)  on dismissing the appeal HHJ Luba QC held that where the landlord had accepted that no gas safety certificate had been served prior to occupation of the premises by the tenant, the landlord had contravened Regulation 36(6) of the Gas Safety (Installation and Use) Regulations 1998 and referred to the previous judgment by DJ Letham in OOO in May 2017. He held that this omission invalidated the section 21 notice by virtue of Regulation 2(1)(b) of the Assured Shorthold Tenancy Notices and Prescribed Requirements Regulations (England) 2015. The consequence is that there is no mechanism under section 21 for the claimant to recover possession.

On the judgment of HHJ Luba QC being put the claimant in this case together with evidence supporting the previous admission by the claimant the claimant then withdrew their claim in this instant case.

Tim Baldwin is a member of the Garden Court Chambers Housing Team.

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