This was an appeal of a District Judge's decision to His Honour Judge Jan Luba QC.
District Judge Bloom had dismissed a possession claim brought by Caridon Property Limited ("Caridon") on the basis that when Caridon served a Section 21 Notice on Mr Shooltz, they had not complied with the requirements of Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (the Regulations) because they had not given Mr Shooltz a gas safety certificate until 11 months after his tenancy started but before he was served with the Section 21 Notice.
Section 21A of the Housing Act 1988 (the Act) states notice under this section cannot be given "…at a time when the landlord is in breach of the prescribed requirement."
Paragraphs (6) and (7) of Regulation 36 of The Gas Safety (Installation and Use) Regulations 1998 (Gas Safety Regulations 1998) contain the prescribed requirements which require a landlord to:
- provide a copy of the gas safety certificate to an existing tenant of the premises within 28 days of the gas safety check;
- provide a copy of the last gas safety certificate to a new tenant of the premises before the tenant occupies the premises, except where the tenant is occupying for less than 28 days, in which case the gas safety certificate must be prominently displayed in those premises.
Finally, Regulation 2(2) of the Regulations states that:
"for the purposes of Section 21A [of the Act] the requirement in Regulation 36 is limited to the requirement on the landlord to provide the tenant with a copy of the gas safety certificate and the 28 day period for compliance with the requirement does not apply".
The wording of the Act, the Gas Safety Regulations and the Regulations causes a confusing situation between the legislation in terms of what a landlord is required to do in respect of the service of gas safety certificates, should they wish to use the no fault basis for possession.
The case therefore raised the following questions:
- Does Regulation 2(2) of the Regulations dis- apply the time limits for providing tenants with gas safety certificates in general?
- Do the Regulations contradict the Act?
- Should a positive reading of the Regulations be applied to avoid a complete bar on service of a Section 21 Notice if a new tenant was no given a copy of a gas safety certificate when their tenancy commenced?
Did Regulation 2(2) of the Regulations dis- apply time limits for providing tenants with gas safety certificates in general?
In interpreting Regulation 2(2) the Court held that:
- Regulation 2(2) dis-applies the 28 day time limit in Regulation 36(6)(a) of the Gas Safety Regulations 1998 in relation to providing a copy of the gas safety certificate to an existing tenant where the landlord argues that he has complied with paragraphs 6 or 7 of Regulation 36; and
- Regulation 36(6)(b) of the Gas Safety Regulations has to be complied with before the tenant takes up occupation of the premises.
Therefore, landlords must provide gas safety certificates to new tenants before they take up occupation of the premises.
Do the Regulations contradict the Act?
The Court did not feel it was appropriate to interpret the Regulations made in 2015 by reference to legislation passed in 1988. In the Court's view the Regulations control "the landlord's ability to give notice under
Section 21 to those circumstances in which assurance has been given to the occupier that the premises are safe".
The Court felt that "any other interpretation of the Regulations would leave it open to the landlord to give a Section 21 notice even where the landlord has let what at the time may have been dangerous and unchecked premises that may have fallen foul of the GS Regs."
Should a positive reading of the Regulations be applied to avoid a complete bar on service of a Section 21 Notice?
The explanatory notes to the Regulations suggest that as long as the landlord has given the tenant a copy of the gas safety certificate even if it is later than 28 days, the landlord would be permitted to serve a Section 21 notice.
However, the Court found that this could not sit appropriately with the obligation in the Gas Safety Regulations for notifications to either be given or displayed prior to the taking up of a tenancy by an incoming tenant. It seemed to the Court to have been a "once and for all" obligation and once the opportunity had been missed, it could not be rectified.
The appeal was therefore dismissed.
Comment
Whilst this is only a County Court appeal, and as such not binding, it is persuasive. This is a case that may go to the Court of Appeal or may result in a change in the Regulations. It will be interesting to see how this dilemma is dealt with. In the interim, it does mean that if a landlord fails to serve a gas safety certificate before a tenancy commences they may find their only options to recover possession is based on one of the grounds in Schedule 2 to the Act, many of which are discretionary and do not guarantee a landlord possession, or serve a gas safety certificate and invite the current tenant to enter into a tenancy agreement.
