In Caridon Property v Monty Shooltza County Court appeal judge has dismissed a landlord’s claim for possession on the expiry of a Section 21 notice. The landlord’s claim failed because the tenant was not given a gas safety certificate before the commencement of a post 1 October 2015 tenancy pursuant to Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (2015 Regulations).
The facts of the case are not important save to say that the landlord failed to provide the tenant with a gas safety certificate at the commencement of the tenancy. In fact, the gas safety certificate was provided shortly before the section 21 notice was served on the tenant which was some 11 months into the tenancy.
The relevant legislation that the court at first instance and appeal considered was:
- Section 21A of the Housing Act 1988 which states that a landlord may not serve a section 21 notice if they are in breach of the ‘prescribed requirements’.
- The Prescribed requirements are then set out in the 2015 Regulations and require the landlord to comply with Regulation 36 of the Gas Safety (Installation and Use) Regulation 1998(3) (requirement to provide tenant with a gas safety certificate).
- Regulation 36 of the Gas Safety Regulations then states that every landlord shall ensure that a copy of the last gas safety certificate is given to any new tenant before that tenant occupies the premises.
Consequently, the decision reached by the appeal judge was that:
- That Regulation 36 of the Gas Safety Regulations must be complied with at the commencement of the tenancy, it is a ‘once and for all’obligation. A failure to comply with the Regulation places an absolute bar on a landlord wishing to serve a section 21 notice. We should point out that this decision does not have an impact on a landlord’s right to serve a Section 8 notice pursuant to the various grounds set out in Schedule 2 of the Housing Act 1988.
- Any other interpretation of the above legislation would leave it open to the landlord to give a section 21 notice despite leaving tenants vulnerable to dangerous and unchecked appliances in any tenanted property.
Comment
This judgement is certainly a strict interpretation of the law and certainly not a purposive reading of the legislation. However, this decision while seen as draconian by many landlords and agents is likely to be very persuasive in the courts until the case is heard in an appeal court or a different case makes its way to a senior court. Until then, landlords and agents are warned to take note of this decision and where a possible issue is identified advice sought sooner rather than later.
