Most Landlords will know that since October 2015 when granting an assured shorthold tenancy one of the many requirements that a Landlord must fulfil at the start of the tenancy is to not only obtain but also to give to the Tenant a Gas Safety Certificate for the property.
The requirement for Landlords to ensure they have an annual gas safety check and Certificate is nothing new. Indeed, that obligation goes back to regulations passed in 1998. What is relatively new is that, as from 1 October 2015, every assured shorthold Tenant must be given a copy of the Gas Safety Certificate when the tenancy commences.
The sanction faced by a Landlord for failing to provide the Tenant with a Gas Safety Certificate is the Landlord cannot serve a s.21 Notice recover possession of the property. However it was widely believed that if a Landlord failed to give the Gas Safety Certificate to the Tenant either before or at the start of the tenancy, then that did not cause the Landlord any particular problem because the Gas Safety Certificate could be given to the Tenant at any time during the tenancy.
A recent case has potentially changed that view.
In Caridon Property Limited v Shooltz, the Landlord gave his Tenant a Gas Safety Certificate 11 months after the start of the tenancy. The Landlord then subsequently served a Section 21 Notice and the Tenant argued that that Notice was invalid because he had not been given a Gas Safety Certificate at the commencement of the tenancy. Contrary to the popular understanding of the legal position, the Judge held that the Tenant was right and that, in effect, a Landlord had a “once and for all” opportunity to get this right and that meant the Gas Safety Certificate could only be provided to the Tenant before the Tenant occupied the premises.
This is important for Landlords. If this interpretation of the legal position is correct then a Landlord who has failed to give a Gas Safety Certificate to the Tenant at the commencement of the tenancy will not be able to serve a valid Section 21 Notice and therefore will not be able to recover vacant possession of their property.
This legislation only applies to assured shorthold tenancies granted on or after 1 October 2015. However, that position changes in October 2018 from when this provision will apply to all assured shorthold tenancies.
Landlords should review their current tenancies (including those that began prior to 1 October 2015) and consider serving Section 21 Notices now, or alternatively, entering into a new tenancy with their Tenant and ensuring that before they do so they provide the Tenant with an up to date copy of the Gas Safety Certificate for the property and ensure that they keep a record of doing so.
If you would like to discuss the contents of this article further, please do not hesitate to contact Andrew Raby of Thackray Williams Solicitors.