In Assured Property Service Ltd v Ooo a District Judge has held that a Section 21 notice is invalid because the landlord failed to provide the tenant with a gas safe certificate at the outset of the tenancy.
Mrs Ooo was served with a Section 21 notice by her landlord’s agent Assured Property Service Ltd. Mrs Ooo had a post 1 October 2015 Assured Shorthold Tenancy, that is a tenancy which is caught by the changes made by the Deregulation Act 2015.
The landlord applied for a possession order using the County Court accelerated possession proceedings and was duly awarded possession in the normal way. The tenant, Mrs Ooo appealed on the basis that the section 21 notice was invalid because she had not been given a gas safe certificate at the commencement of her tenancy pursuant to s.36(6) of the Gas Safety (Installation and Use) Regulations 1998.
A landlord is required to provide a tenant with a gas safe certificate at the commencement of their tenancy pursuant to s.2(1)(b) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. Where there is a failure to comply with the Regulations that is to provide a gas safe certificate at the outset, the section 21 notice is invalid.
In this case the landlord accepted that a gas safe certificate had not been served prior to the commencement of the tenancy however it was argued that a subsequent certificate had been provided. Despite this, the court held that the failure to provide the gas safe certificate at the outset of the tenancy made the section 21 notice invalid. Consequently, the possession order was set aside, and the tenant awarded costs.
More seriously the court suggested that the failure to serve a gas safety certificate at the outset of the tenancy was a breach that could not be rectified and so a section 21 could never be served in respect of this tenancy.
This issue will no doubt have to be revisited. As it is only a county court judgement, it is not binding on other courts however, this decision suggests that a landlord cannot obtain a possession order under s21 where they have failed to provide a certificate at the outset. This cannot be what those drafting the Regulations intended. Unfortunately, until the matter comes before a more senior court landlords and agents are advised to ensure they are familiar with all their obligations in respect of the paperwork they have to provide and that they keep accurate records.