I can serve this only once – gas safety certificates

Caridon Property Ltd v Monty Shooltz. Central London County Court. 2 February 2018 (from note of judgment)

First our thanks to Matthew Cannings of 3 Paper Buildings for note of judgment and Richard Cherry of 33 Bedford Row for details (counsel for appellant and respondent, respectively).

This was an appeal to a circuit judge of a first instance decision of District Judge Bloom (who is an experienced housing lawyer). The circuit judge was HHJ Jan Luba QC (a very experienced housing lawyer). At first instance, DJ Bloom had dismissed a possession claim by CP on the basis that at the time CP had purportedly served a section 21 notice on its tenant, MS, CP had not complied with the requirements of Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, in that a gas safety certificate had not been provided to the tenant at the start of the tenancy, before the tenant took up occupation. A gas safety certificate had been provided some 11 months later, apparently (though not definitely) shortly before the service of the s.21 notice.

The relevant provisions are that section 21A Housing Act 1988 (as amended) states

(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.

The prescribed requirement are, in part, found in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015

2.—(1) Subject to paragraph (2), the requirements prescribed(1) for the purposes of section 21A of the Act are the requirements contained in—

(a) (….), and
(b) paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998(3) (requirement to provide tenant with a gas safety certificate).
(2) For the purposes of section 21A of the Act, the requirement prescribed by paragraph (1)(b) is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply.

And then the Gas Safety Regulations 1998 state at 36(6) – the relevant section:

(6) Notwithstanding paragraph (5) above, every landlord shall ensure that—

(a) a copy of the record made pursuant to the requirements of paragraph (3)(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and

(b) a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.

So, the questions were:

i) Did Section 2(2) of the AST Prescribed Requirements regulations disapply time limits for providing gas safety certificates in general?

ii) Does the secondary legislation (the Regs) contradict the primary legislation (the Housing Act 1988)?

iii) Should a purposive reading of the regulations be applied to avoid an absolute bar on service of a section 21 notice?

On i) HHJ Luba QC held

In my judgment, therefore, those words do not limit the impact of paragraphs 6 and 7 of Regulation 36 only to the scenario in which parliament is concerned with notice in relation to gas safety being given to existing tenants. Nor, in my judgment, is that understanding of Regulation 2(2) changed by the additional words “and the 28 day period…”. In my judgment, what those words mean is that where a landlord is seeking to say he or she has complied with the variant of paragraph 6 or 7 relating to an existing tenant that then the 28-day period for compliance with the requirement to give notice to an existing tenant does not apply.

So, the Gas Regs s.36(6)(b) requirement had to be complied with at the commencement of the tenancy.

On ii) it was not legitimate to seek the purpose of the regulations in the Housing Act 1988 as originally enacted.

It is not legitimate to construe Regulations made in September 2015 pursuant to devolved powers in place as a result of legislation passed in July 2015 by reference to the purpose of primary legislation passed in 1988. That is not in my judgment permissible under any medium of statutory instruction or interpretation. I do not consider it necessary to engage further with the matter other than to see whether the construction I have given to Regulation 2(2) is inconsistent with the primary function of the AST Regs themselves. In my judgment, my interpretation as indeed that of DJ Bloom, gives effect to those Regulations. It controls 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 (…)

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. 

On iii) – the explanatory note to the AST Prescribed Information Regs stated:

Regulation 2 prescribes certain requirements for the purposes of section 21A of the Act (compliance with prescribed legal requirements): these are the requirement to provide tenants with an energy performance certificate under regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012 and the requirement to provide tenants with a gas safety certificate under regulation 36 of the Gas Safety (Installation and Use) Regulations 1998. However, the requirement to provide tenants with a gas safety certificate is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply. The “no fault” eviction procedure for assured shorthold tenancies is not available to landlords at a time when either of the requirements has not been complied with.

From that and the notes to the Deregulation Act

It appears that the policy makers in question who draft such materials had thought that the prescribed requirements were all suspensory in their operation. That is to say; that once a landlord had complied with the Regulations that he or she would be able to serve a Section 21 notice even if such compliance was later than had been anticipated.

However, HHJ Luba QC found

in my judgment, that cannot sit appropriately with the obligation in the GS Regs for notifications to either be given or displayed prior to the taking up of a tenancy by an incoming tenant. That seems to me to have been a ‘once and for all’ obligation on a prospective landlord in relation to a prospective tenant. Once opportunity has been missed, there is in my judgment no sense in which it can be rectified. If the Minister believed that that ‘once and for all’ cut off should not debar a landlord from serving a Section 21 notice, it was open to the SoS to simply disapply those parts of Paragraphs 6 and 7 of Regulation 36 in express terms in what has become Regulation 2(2).

Appeal dismissed.

Comment

This cannot be said to be a new question. We raised it before the Deregulation Act amends came into force and, as HHJ Luba QC notes

It may be observed, simply in passing, that in the most recent edition of the handbook ‘Defending Possession Proceedings’ – widely referred to by the first instance judiciary when dealing with possession cases, the authors of whom I am one – have written at paragraph 10.50 that “…if the latest gas safety certificate was not given to the tenant before he or she occupied, this is a breach which cannot be rectified… although this may not have been the legislative intention.

That said, this judgment puts the issue firmly into the limelight. While it is only a county court appeal, and as such not generally binding, it will be very difficult for any District Judge in London to dissent, and it will have potentially persuasive effect elsewhere.

It may be that this is going to the court of appeal, and that the CoA will find differently, or it may be that the Prescribed Information Regulations will be amended by MHCLG. But for now, any landlord who did not provide the gas safety certificate at the start of a post 1 October 2015 tenancy, before the tenant moved in, is likely to find that they cannot serve a section 21 notice, at least during the period of that tenancy.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Housing law - All, Possession and tagged , .

88 Comments

    • Because now the only Circuit Judges in London are at Central London County Court, so District Judges in London should follow their decisions.

  1. Well no doubt the tenant’s lawyers are thinking what clever people they are, fighting the fight of the poor and oppressed (albeit generously remunerated for doing so by either the taxpayer through legal aid or by unfortunate landlords who are victims of incompetent parliamentary draftsmen).

    But in practice all this expensive little game establishes is that ordinary landlords, who can’t get legal aid to play in this particular casino, are punished to an absurd extent for a minor error that in any world where common sense existed should be easily rectified.

    Still, not your problem eh chaps? You don’t make the rules, you simply make a very comfortable living playing with them.Trebles all round!

    • Charles, lots wrong there.

      Legal aid is not generous. In 1997 it was £70 ph, now it is £63 ph. That is a real terms cut of £60.55 per hour. Legal aid work is break even or a loss, at best.

      The issue is that the law doesn’t (indeed can’t) work by people going ‘oh, well, we’re pretty sure we know what they meant, even if it says something different’ (and it certainly can’t work on being ‘it is whatever Charles thinks it is’) – it can only work on the words of the statute. And, as I and many others have been pointing out since before these regulations came into force, what the regulations actually say would have this effect.

      The problem was caused by DCLG drafting. If it was not intended, it is up to them to sort it out. They’ve had a couple of years. Or maybe the court of appeal will, but that is wholly speculative.

      Of course, you completely rely on statute and the wording being completely clear every time you bring a s.21 possession claim. It is rather odd to whinge about interpretation of the law when that is what you completely rely on.

      And of course providing the gas safety cert at the start of the tenancy has been a statutory obligation for 20 years. You can hardly complain about not being told about those…

    • No one asked you to become a landlord – go and print your money elsewhere.

  2. Per the reply by Mr Loveridge; This isn’t a game. The purpose is to ensure the safety not only of tenants but of neighbouring properties. We’ve all seen the widespread results of massive explosions caused by gas defects.

  3. Thanks Giles

    Great retort to “Charles”

    The one thing that deposit regulation has taught us is that Landlords will only do what they are supposed to do if they are properly punished for not doing it. For me Gas Safety is the most serious of the Landlord obligations, no IF’s no BUTS, just build it into your processes to have an annual check and to put of copy of current valid certificate into the tenancy agreement at sign up and have them sign your copy. along with Energy Performance, the Deposit PI and the How To Rent (HTR) Doc.

    In my opinion the law should be updated that for such failures a £1k fine on first offence and £5k thereafter with proceeds going to Shelter. I cannot think of a more serious risk, fire and poisoning fumes.

    I do have one query however, in my experience after an S21 has been thrown out the Landlord usually has to fix something, (Serve the right HTR, Protect the deposit or whatever). Then they can issue a new S21.

    You seem to be suggesting that the Landlord can no longer issue an S21 to that tenant until the tenant decides to leave or S8 proceedings are brought for an appropriate ground?

    I am not sure what the remedy would be, perhaps the creation of a new tenancy by Court under Landlord and Tenants Act or just allow to pass to SPT and provide a new Gas Safety Certificate at that time (if not already happened).

    I have never known of a failure to mean that Landlord can’t remedy the fail, your thoughts would be appreciated as always.

    I can imagine that Landlords everywhere are hoping this Landlord will NOT appeal for fear of risk of a higher court decision affecting them.

    Will you be able to update the post with a link to a copy of the decision for reference purposes.

    • As far as I can see, it would require a ‘new’ tenancy – with provision of the gas safety cert at that point – before a s.21 could be served. If this judgment is right, then there is nothing the landlord can do to rectify the failing during the course of a tenancy.

      Whether a statutory periodic would count as a new tenancy in these circumstances is an interesting question. I think it probably would, but I’m not certain.

  4. What do you think is likely to be the situation after 1 October 2018 when the new rules will apply to all ASTs, not just those created on or before 1 October 2015?

    • Well quite. Unless there has been a change in the regulations, or a different higher court decision, then this will apply. Which will be… interesting.

    • There will need to be new regulations for tenancies that come into scope on 1 October 2018 anyway (because of reg.1(3) of the 2015 Regulations), which will make it very interesting if they adopt different wording for those without also amending the 2015 Regulations.

  5. I have been told that this situation (i.e. no correction possible for failure to serve before the start of the tenancy) will apply also to EPCs. Is this likely?

    • I don’t think so. The way the regs operate means that the only requirement is that the EPC is given to tenant, with none of the same timing issues.

    • This argument is derived from the wording of reg.6(5) of the Energy Performance Regulations, i.e. “The relevant person must ensure that a valid energy performance certificate has been given free of charge to the person who ultimately becomes the buyer or tenant”. The “has been given” must mean before some trigger event, which here is the person becoming the tenant (or buyer). It can’t mean that the certificate can be done at any point thereafter, because (a) enforcement by penalty charge notice would be pointless and (b) it defeats the purpose which is to ensure that information is available sooner rather than later.

    • Well then the AST regs would have relied on reg 6(2). I don’t think a deadline can be read easily into 6(5) as it is a long stop for a failure to meet 6(2).

    • Well they couldn’t rely on reg.6(2) as that doesn’t necessarily require a copy to be given to the person who then becomes then tenant (but would require it to be given to a whole host of people who don’t go on to become the tenant), but I agree that the time limit is far clearer there. 6(5) is partly a long stop for 6(2) but not wholly as it is also designed to catch those cases where 6(2) does not apply because of 6(3). But even if it is a longstop, that must have some limit. You can’t field from outside of the boundary.

  6. DCLG ‘Draftmanship’ can also be seen at work in the absolute farce of the How2rent book and serving outdated version(S) as mentioned in your recent posting. Seems DCLG aren’t too bothered about the added difficulties their meddling affects Sec 21.
    Similar question to Tessa’s re H2R, will no initial service be subsequently deemed ‘unrectifiable’
    I wonder how many homes more than ‘None’ currently, Shelter might be able to provide with extra landlord contributions !

    • Erm, Chris, I have no idea what you mean about ‘extra landlord contributions’ re Shelter.

      ON the How to Rent booklet, there is no specified time limit in the AT Prescribed Information Regulations – section 3. In fact, the reverse, if the booklet was served during a previous tenancy, there is no obligation to serve it again if it has not changed by the first day of the new tenancy, even if it subsequently changes. So, simply, serving the How to rent booklet before serving a s.21 notice suffices (as long as it wasn’t out of date, and then can be rectified and a new s.21 served).

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  8. The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 states that the requirement is: “is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply.”

    Arguably, this completely overrides *both* paragraphs of regulation 36(6).

    Another issue created by bad drafting: Quoting regulation 36(6) but then adding a paragraph to override most of all of it is confusing.

    • That was one of the arguments run by the appellant landlord. It didn’t work, not least because there is no ’28 day period’ for the initial provision.

      Yes, certainly bad drafting.

    • The regulation makes it clear that the only requirement is to provide a copy of the certificate and that there is no time limit to do that.

      It’s not clear why the judge went on to look at gas safety reg 36(6)(b) in those conditions, apart from being confused by the mention of these regulations in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.

      I believe that this is still only a county court case, so does not create a precedent.

    • It is only a county court case, but an appeal decision by a circuit judge, so district judges and other circuit judges would need good reason to dissent.

      No, the regulation does not make that clear, quite the reverse, the only time limit disapplied is the 28 days. The AST regs say must have complied with s.36(6) of the Gas regs, and then only removes the 28 day limit for compliance from 36(6)(b).

    • The regulations mention the gas safety regs but then make clear that the requirement in relation to s.21 “is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply” (as already quoted).

      That’s rather clear as to what the actual requirement is. Reg 36(6)(b) does not apply since the requirement ““is limited to the requirement on a landlord to give a copy of the relevant record to the tenant”.

    • Romain, your version is inaccurate. Reg 36(6)(b) certainly does apply. That is the express effect of s.2 of the AST PI regs. So, the baseline is s.36(6)(b) applies (see s.2(1)(b) of the AST regs). Reg 36(6)(b) sets out the requirement for the landlord to give the tenant a copy of the gas safety cert. The only specific part of the reg 36(6) requirement that is disapplied by s.2(2) of the AST Regs is the 28 day period in s.36(6)(a).

      The argument that s.2(2) meant all specified times in s.36(6)(b) were disapplied was made in this case. It may even yet be that the court of appeal decides that that is so. But I am afraid it is far from the only obvious interpretation. It is, I suspect, poor drafting.

    • Well, the version of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 I have states in section 2 paragraph 1(b) that Reg 36 applies BUT subject to paragraph 2, and paragraph 2 states:

      “the requirement prescribed by paragraph (1)(b) is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply. “.

      Section 2(2) above explicitly states that Reg 36(6)(b) does not apply since it states that the only requirement is to give a copy of the certificate without time limit for doing so.

      Hence my surprise that the court found that Reg 36(6)(b) applies…

    • No, reg 36(6)(b) applies – s.2(1)(b) of the AST Regs says so. So does Reg 36(6)(a) – Give the tenant a copy within 28 days of the date of the check.

      The question is then which bits of 36(6)(a) and (b) are disapplied by s.2(2). The only express disapplication is the 28 day time limit in s.36(6)(a). It does NOT say the time limits for giving a copy in 36(6)(a) and (b) do not apply. If you read ‘limited to the requirement on a landlord to give a copy to the tenant’ as disapplying all time limits, then the further ‘and the 28 day period does not apply’ would be unnecessary.

  9. It should perhaps be noted that regulations 5 and 6 of The Gas Safety (Installation and Use) (Amendment) Regulations 2018 (into force on the 6th April 2018) amend landlords’ record keeping requirements regarding gas safety checks and the determination of the date by which the next gas safety check is due, respectively.
    http://www.legislation.gov.uk/uksi/2018/139/made

  10. This case has not escaped the notice of several colleagues of mine in the homelessness field who I have spoken to this week, mindful of the Homelessness Reduction Act and the extension of the category of persons ‘Threatened with homelessness’ within 56 days where a ‘Valid s21’ has been served and given that the main driver’s for a homelessness applications and acceptances come from the ending of tenancies under s21 this could well be one of those cases that come along every few years where the issues raise have quite astonishing ramifications all round.

  11. Even if govt decide to redraft the legislation how long will it take them? It was 4 years between acknowledging the problems with the wording of Appendix FM and finally re-writing it.. Whats that Chinese curse about living in interesting times?

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  13. What is the position if a Landlord (having correctly provided a GSC at the start of the tenancy), subsequently wishes to serve s.21 notice without there being a valid GSC in force at that date?

  14. Is there any legal remedy then or does this interpretation now mean that section 21 is completely unusable if the gas certificate was not given ‘before’ the tenant moved in, therefore no chance of ever evicting a tenant unless there are grounds under section 8?

    • My view is that serving a gas safety cert at or before the start of a ‘new’ tenancy would mean a s.21 could be used thereafter. Either a new fixed term tenancy or, (possibly more debatable) a statutory periodic tenancy arising.

      If that is right, then at or before the end of the fixed term, landlord serves valid gas safety certificate, then after tenancy has become a statutory periodic, they can serve a s.21.

  15. Hi thanks for the reply
    So if is already periodic from the previous fixed term a remedy may be to give the tenant a copy of the gas certificate and a subsequent renewal tenancy for say 2 months and then serve notice under section 21 at that point? Not bound by 4 month rule as is a renewal etc?

    • Well not quite that simple.
      a) the tenant would have to accept a new tenancy, and could just refuse to do so, given that the landlord couldn’t end the stat periodic.
      b) Notice could not be given within 4 months from start of stat periodic, and any possession order couldn’t be made within 6 months from start of the stat periodic (s.21(5)(b) ).

      Any ‘remedy’ that relies on the tenant complying is, shall we say, uncertain…

  16. Giles,

    Extending your logic concerning serving a Gas Certificate at the point a Contractual Tenancy becomes a new Periodic Tenancy to rectify a failure to serve at the initial tenancy ….. Does this mean that the LL must serve a Gas Certificate at the creation of the Periodic Tenancy, and a failure to do so means that a S21 may not be served even if the Gas Certificate was correctly served at the creation of the Contractual Tenancy?

    >======================

    Your point about Gas Certificates having been a requirement for 20 years is well made, but the issue here isn’t gas safety, but gas bureaucracy.

    As of last week a LL who has always maintained and certified their gas installations (and remember that some flats without gas still require gas certificates) will now find themselves penalised because they cannot prove that a new tenant was given a gas certificate with the tenancy. I accept that numbers of copies are not an insurmountable problem, but it is indicative that the law is applying the gas safety setup in a way that wasn’t intended that when a Gas Engineer issues a certificate they issue a copy to the LL & a copy to the tenant …… nothing about further copies for new tenants. The subject of MOT was mentioned above – the system should operate in that manner – an online database of property gas certification. Why complicate tenancy law with what is a Gas Safety issue?

    The point about explosions was made – neighbours are killed by a gas explosion whether the installation exploding was rented or owned, so why are only rented installations required to be maintained and certified?

    As I said, this isn’t about safety.

    >======================

    “Giles Peaker
    12/02/2018 at 10:31 pm
    Erm, Chris, I have no idea what you mean about ‘extra landlord contributions’ re Shelter.”

    Was your failure to understand rhetorical? I can explain if needed, and I think that it’s a point well made about the cause of the problem of homelessness.

    >======================

    I think only a lawyer would view charging £63/hour as lossmaking.

    • Nick, in reverse order

      I can only presume you haven’t called out many plumbers lately. Or indeed used an estate agent. Or an accountant. And you certainly don’t have to pay a lawyers professional indemnity insurance premiums. So I’ll chalk that one up to you not getting out much any more.

      I still have no idea what Chris means about landlord contributions to Shelter. Unless they are making personal donations, but I don’t think that was the point.

      I am unconvinced by the extra bureaucracy argument. But in any event, this has been a requirement for 20 years – a copy for incoming tenants. It is odd that you only choose to complain about it when a breach has consequences other than a completely hypothetical HSE prosecution. This suggests that actual penalties are needed for landlords to comply with 20 year old regulations. And of course it is about safety…

      On the stat periodic point – the requirement is to provide a gas safety cert before the tenant goes into occupation on a new tenancy that is valid when the new tenancy starts. The regs don’t say how long before (though obviously, within 12 months) Now, the arguable issue over this is what ‘before the tenant occupies those premises’ would mean in those circumstances, because, possibly, they are already in occupation, under the ‘old’ tenancy.

  17. Giles,

    I hope that if this descends into a slanging match that it won’t be my fault. I do see both sides of the argument, and I do act on both sides, even though, as a professional landlord my livelihood lies on one side.

    Of course I use plumbers, estate agents and accountants – and if you want to take the argument to the nth degree I pay £30 for a gas certificate, £60 to advertise a property, and £12/hr for bookkeeping. Most of us don’t earn £60/hr and arguing that we should in disputes with tenants is only going to raise rents (that’s how the market works). I appreciate your overheads are remarkable – but I think that this is part of the problem & can be addressed. I too spent 3 years at university, followed by 4 years of professional training before I got my qualification – that is the case with most professions, but it rarely leads to viewing £60/hr as working at a loss. The fact that you quote professional indemnity insurance as a major cost is a clear indicator of the problem. The major cost of being a lawyer is being sued by a lawyer (and if you want to argue the point I have a long personal anecdote).

    Chris’s point is that Shelter do nothing to house people. Their role is to criticise & attack those who do for not doing it well enough. Whilst this is laudable in itself it does nothing positive to improve the situation. They get a remarkable sum of money from government and it would be nice to see some of it spent on housing schemes for those in need.

    If it is about safety why doesn’t it apply to all gas installations?

    On the new Periodic Tenancy point I don’t think that you have provided a clear answer.

    • Hi Nick – no, no slanging match.

      £63 per hour can easily be working a t loss. This is earnings for the practice, not the individual. Take an example. Small set up of two solicitors and one support staff. To get a fee income of £200,000 in total, each solicitor would have to do about 1600 billable hours a year. (Remember, a lot of time isn’t billable, including time consuming things like legal aid applications). Allowing for 4 weeks off a year (total) that is 33.3 hours a week or 6.5 hours a day. That is a lot for billable time, but we’ll go with it for now. Costs of the practice – two solicitors on £34K (hardly excessive), plus pension, NI etc – say £80,000 total. £25,000 for support staff. Office rent, say £20,000 pa. VAT £40,000, profession indemnity insurance premium – £30,000. Total: £195,000. Then, utilities, supplies, computers, photocopying, practice certificate fees, phones. And so the practice is making a loss.

      (The reason PI is so expensive is not the cost of lawyers, it is the size of things that can go wrong – let’s say you cock up a £3 million house sale/purchase. Just one transaction).

      Shelter don’t get any central govt money (apart from legal aid funding for their legal services – but see above!) You can see sources of income here https://england.shelter.org.uk/__data/assets/pdf_file/0013/1405030/OBR-1521_Annual_Report_DIGITAL_FINAL.pdf?. I really don’t understand this line that I’ve heard a few times that Shelter should be setting up as a housing association themselves. Their role is to a) campaign on homelessness, housing provision and housing standards – seeking to influence policy and b) provide legal advice to those with housing issues. It is a bit like complaining that RLA and NLA don’t provide housing themselves.

      It does apply to all gas installations owned by the landlord – see s.36(1) of the Gas Regs, under ‘relevant gas fitting’. The Regs also apply to work places. The major issue is not so much explosions, of course, but carbon monoxide poisoning.

      On the periodic tenancy point, I don’t think there is a clear answer yet. It is arguable either way. If you are still wondering about the timing, the requirement is simply that the tenant has the gas safety cert before occupation (and the cert is valid for that point) so a tenant getting a gas cert 6 months before the start of a statutory periodic would have received a cert that was valid at the start of that (perioidic) tenancy.

      The question is over whether that can be said to be ‘before the tenant occupies those premises’, which is the s.36(6)(b) requirement.

  18. If you want to get pedantic Shelter do get government grants for various projects, however these are for specific contracts. (E.g. Support services for vulnerable groups in various areas of the country, training services etc.) Shelter would, in fact, be breaching these contracts if they used the money provided by the government in exchange for these specific services to get into the landlord business.

    Pure historic note, but as I recall Shelter actually got its start as the advice-giving wing of Notting Hill Housing Trust. Been decades since the organisations went their separate ways obviously, but basically Shelter’s always been an advice-giving charity rather than a housing association.

  19. Giles – I am not sure that the landlord can get out of it by granting a replacement tenancy. Reg 36(6) requires the certificate be given before the tenant “occupies” the premises. If the tenant is already occupying the premises it can’t be complied with. The fact that a new tenancy is granted is therefore likely to be of no assistance.

    As I said in the comments to the other case, there is considerable force to the reasons underpinning this decision (and far be it for me to suggest an experienced and learned judge has got it wrong). Having said all of that, however, I just can’t see how it can be correct. While we can never know for sure, it would be very surprising if this result was Parliament’s intention. Moreover, while in many other contexts the construction of the regulation in Carridon would be hard to fault, the meaning of an SI must be construed in the context and purpose of its enabling Act and in this case, that must surely point to Parliament intending that a copy served after the commencement of the tenancy would suffice.

    Chapter II, as amended by the 1996 Act, was intended to make ASTs the default tenancy agreement in all private sector lettings. I would have thought therefore that clear words by Parliament were needed to change this. The primary amending legislation (i.e. what became s.21A) is worded in a way that does not suggest that it was not Parliament’s intention to change this. The prohibition on serving a s.21 notice occurs only “at a time” when the landlord “is in breach” of a prescribed requirement. This surely therefore envisages a landlord being able to serve a s.21 notice at a time when he is not in breach and must therefore be able to rectify an earlier failure. If a breach was intended to be terminal, one would have thought the words used would have been “had breached”..

    Secondly, the regulation itself makes clear that all that is required is that a copy of a valid certificate be given (which is also the case in respect of EPCs). The disapplication of the 28 day time limit certainly confuses the position, but when looked at in the context of the regulations as a whole, its enabling section and the purpose of Chapter II, an argument that only a copy is needed is pretty convincing.

    We certainly need clarification from the Court of Appeal or High Court. I was made aware of a district judge in London not following this decision only yesterday. The law is not meant to be a lottery.

    • Sam, as per my replies to Nick, yes a replacement tenancy would turn on ‘before occupies’, but that is for any ‘new tenant’. Arguable – I put it no higher – that this means before occupies as new tenant, meaning under the new tenancy.

      I agree that this was all almost certainly not Parliament’s intention. And may yet be reversed at High Court or Court of Appeal. But we have been here before with the tenancy deposit rules (that time benefiting landlords) and we all know how long that took to sort out, despite parliamentary intention being pretty clear.

    • In support of my argument on replacement tenancies – the Deregulation Act requirements apply to not only ‘new’ tenancies granted after 1 Oct 2015, but to any ‘replacement’ tenancy (fixed term, not stat periodic) granted after 1 Oct 2015 to follow an existing (pre 1 Oct 2015) tenancy. If my view on replacement tenancies was wrong, then every single such replacement tenancy would be in irrevocable breach.

  20. Giles,

    According to your link Shelter’s income (2017) is as follows:

    Donations & Legacies £33m
    Fundraising £11m
    Trading £8m
    Government £15m

    A lot less from Govt than I thought, but the housing crisis says that it isn’t money well spent. I think that one of the reasons that Shelter comes in for so much flak is because some of the things they come out with are difficult to reconcile with real life. I would like to see renting a home as easy as renting a car or a holiday, and Shelter as principle activist in the area should be at the forefront of making it so. 52 years on from Cathy Come Home it doesn’t feel as if we are any closer.

    >=======================

    Only Gas installations owned by Landlords need checking for safety, hence my comment that it can’t be about safety otherwise ALL gas installations would be covered by the regulations.

    I agree that CO is the bigger menace, I only mentioned explosions because that’s what the discussion was already talking about – presumably because they affect 3rd parties.

    In fact if you look at the statistics for CO deaths:

    Highlights:

    Deaths from Gas Explosions 106

    Deaths from CO 653

    Deaths from CO in the PRS 68

    Also – only 1/3 of CO deaths are due to mains gas.

    So all this activity regulating the PRS is addressing around 3% of all CO deaths.That supports my premise that regulation of the PRS can’t be about safety or it would be applied to all installations.

    See http://www.co-gassafety.co.uk/wp-content/uploads/2015/07/Statistics-Sheet-for-press-pack-2014.pdf

    >=======================

    • On Shelter Govt income – See Daniel’s point. It is contractual, for services, not core or donation funding. So it would be spent on service provision by someone else if not Shelter.

      Agree that we should be a lot further on from Cathy Come Home than we are. Renting a car is an interesting analogy – of course one has to have a licence.. ;-)

      Landlords and employers gas installations – ie, where someone is responsible for someone else’s safety. And as for the deaths figures, arguably that is because of the regulations, rather than showing the regulations are unnecessary. The number of deaths in owner-occupied properties, where the Regs don’t apply, would show that to be the case.

    • And not sure where you get the £15m. In 2015/16 it was just under £6m and in 2016/17 about £5.6m. I think you have rolled in local authority, lottery funding, and HM Prison funding to the total.

  21. Giles,

    Not in your order because my arguments follow on in a particular way ….

    >=============================

    Shelter – Yes I bundled all Government funding into one total. I don’t see why it changes anything that they are paid contractually, they receive a lot of money & don’t spend any of it on solving the homeless problem. I understand that it is the intention of the donor (Govt) that the money should be spent on other activities, so maybe you are right, but I would be happier to see them take a principled stand & refuse the money unless it is spent on solving our homeless problems.

    I do actually think that a lot of what they do is good and necessary, but I feel alone in understanding both that, and why so many consider them a waste of space.

    >=============================

    Car Licensing is an excellent analogy, especially in view of today’s news that many joy riders are banned from driving before they are old enough to drive. That is very much up there with the concept that we need to regulate the 3% of CO deaths rather than the 97% of deaths. I get your point that the 3% is only 3% because of the regulation, but equally the 97% is only 97% because government is only addressing the 3%

    >=============================

    Again I am in the minority as a Landlord who is in favour of licensing, and again I feel the only person in favour of licensing who understands why most landlords are against it. Where there is a requirement to license pretty much 100% of the landlords who license provide excellent accommodation to their tenants (lets call it 97% to relate to my previous point) and 100% (lets call it 97% to relate to my previous point) of the Landlords providing Rachman slums don’t license.

    As an ethical Landlord I compete against the rogues, they can always undercut me on price because they don’t have to pay licensing costs (which are substantial), and they don’t have to pay the maintenance costs of keeping a property up to habitable standard, so I am at a disadvantage.

    If we are to solve the homeless problem then at some point the government need to recognise that they need to support and encourage the ethical PRS.

    >=============================

    • Hi Nick

      Lots we agree on there. Particularly the importance of the ethical PRS (and of recognising it. I would very much agree there). And I’m doing my best to make sure the rogues can’t undercut on standards.. ;-)

      I do get the arguments against licensing. And of course the worst don’t licence. But a licensing requirement makes it much easier to find the rogues, and, bluntly, given the state of council funding, licence fees are a way to fund enforcement against the rogues. To that extent, it is the good landlord’s contribution to eradicating the unethical, undercutting competition. (And, with the best will in the world, ‘self-regulation’ by PRS landlords has not worked.)

      On the gas safety figures – there is a significant drop in the gas mains CO poisoning rate from the years preceding the gas regs to the years after their introduction, down by two thirds. That in itself suggests they are worthwhile.

      A last bit on Shelter – only the £5.6m is Government money. (Lottery funding isn’t really public money, Prison service money and council money is public, but not directly Govt.). And as that Govt money is contractual, for specific services, many of which are directly about reducing homelessness through advice, assistance and advocacy (and training!). Dealing with homelessness is not only about providing homes. And changing housing policy can be rather more important in the overall scheme of things that providing a few homes (compare Shelter’s total budget to that of even a small housing association).

  22. Pingback: More Problems for Landlords – Gas Safety – Coventry View

  23. This is a clear case of the law looking up its bum.

    The aim of the law should be to make sure that safety is protected, and that gas systems are safe.

    These pathetic machinations, games and convolutions have nothing to do with that, and achieve the opposite. Which is why folk lose confidence in the law (a bad thing) and treat it all as some sort of mad joke.

    Lawyers, politicians and judges should be ashamed.

    • Abel, it has been a requirement to provide a gas safety cert before the tenant moves in for over 20 years. From that perspective, no landlord should be failing to do this, unless they are too incompetent to be a landlord.

  24. The problem I have is the onus of proof. I mean many landlords may (or may not) hand out the certificates to the tenants before they move in, but without a signature who is to say whether the tenant/landlord is telling the truth or not if they did, that is the problem. And given this concerns eviction you definitely could say a tenant will have reason to lie. Its getting to the point where I can see entire teams at councils remit will be oversee a tenancy being set up so there will proofs that gas/epc/how to rent guide etc have been handed over

  25. Sam those teams have existed for decades. We are called TROs.

    Last week I dealt with an agent who issued all relevant documents at the start of the tenancy and got the tenant to sign a sheet added to the front of the pack, with all the right boxes ticked, agreeing that they had been served. How herd can it be?

  26. Well given that most landlords probably have not had an issue since october 1 2015 many probably will not even be aware of the requirements of the ‘deregulation act’ . I am not defending the following but some landlords are still not aware of tenancy deposit protection 10 years on, so certainly many will not be aware of the deregulation act changes. After all apart from the landlord sites where the changes particularly advertised prominently? After all there many not aware of the legionaires safety check

    Plus the story you gave technically it could be claimed they didn’t get all the documents. After all from how you describe it , it was the landlord who had all the boxed ticked already and the tenant agreed, it would be easy to argue the tenant did not actually see all the documents mentioned now a signature on each document or tenant doing the ticking themselves would be a different matter. So in this situation I could see a judge saying the tenant should not unknowingly defacto signed they got all the documents but still would not be proof for the requirments

  27. A further comment I would add: Take the how to rent guide that at least can be sent/issues even if you forgot (landlords are human after all) but as it has to be the correct date. A landlord going to the official website from the goverment does not have a archive (funny that) so landlords will rely on this site, as I dont think any other website has a archive) and you better believe a goverment under preasure to fix homelessness (true fixed are out I am afraid) will more than likely make trivial updates to the guide to undermine section 21 cases. And for that reason it would not suprise me if they did away with sec 21.

  28. Sam that things got trickier for landlords after the Dereg Act I wont deny and that this gas safety thing adds another level of tricky is also true but its up to a landlord to know his/her business. What impressed me about that agent was the fact that they had done all that was required of them and made sure the tenant signed a receipt form listing every document, so there was nowhere that I could help the tenant on the N11B form to mount a defence.

    THATS what I call professional, a very rare trait among most agents I deal with.

    Complaining about the increasing complexity of landlord and tenant law does nothing to make it any easier. Landlords should instead make sure they are on top of things. For the most part what makes a TROs job akin to shooting fish in a barrel so often is that we keep up with developments

  29. They should know their ‘business’ although the goverement does not treat being a landlord for ‘business propertty relief’ so a bit of having its cake and eating it to ie regulating as it is and taxing as it is not. and it is not technically no regulation should be applicable at all (after last I checked all that is required with investments is paying the tax due??). AND crucially all these ods and sods regarding the deregulation act DO NOT apply to social landlords whatsoever so they can lay back and just wait for possesion. So for sake of consistancy why was it just private targeted especially as social do more of the evicting. And is it realy right a landlord should not be able to evict under 21 just cuz they forgot what could be 1 thing PERMANENTLY which could be due to various reasons such as genuinly forgot or more understandable such as a death of a friend/relative or in pain due to tooth issues for eg. A lot of people in jobs do make a mistake and then can quickly rectify without anyone be the wiser, So I repeat I just think it would be very unfair if it was UN rectifiable. Especially as tenants could break terms of a tenancy and more than likely unless it was a mandatory ground a judge would still rule them allowed to stay.

  30. Oh come on Sam, lets get away from this “I’m a poor beleaguered landlord” stuff.

    Every area of professional endeavour is fraught with annoyances and regulations that dont seem to make sense.

    Giles has ably pointed out the true costs of being a solicitor in response to Nick Parkin’s comments.

    My wife is a corporate travel agent, similarly encumbered by regulations that annoy and frustrate. Last week she lost £400 of her own money because she took her eye off the ball when a client was changing dates and forgot to cancel a pre-booking.

    She ranted and raved, offering up a few choice words and got on with the next client.

    The world is not against you because you are a landlord. The law is just complicated and sometimes mad. The alternative? get a day job where those frustrations are someone else’s problem

  31. As it happens I am not a landlord and in fact rent from one. Just in recent years since housing became a very contenious issue, I have followed developments. As I said if the landlord can make good that would be fine but given even (at least as far as I know) health hazard issues the local authority gives warning and time to do the thing needed before they take criminal/legal action against the landlord for the landlord to potentionally to not be able to do ANYTHING for something more trivial strikes me unfair, especially if they have actually done the checks in the first place just failed to get the relevant signature (in the case of actually giving the docs) I would have more sypathy if it was the case of a landlord getting the certificates done just to be able to evict. And as I said in the previous post why is it that social landlords are not under the same requirments with the deregulation act? After all it is not like all of them are great with 1 recently failed to get 1000 properties their gas check done yet that landlord if needed will be able to use a section 21 but a private landlord whom even did the check but failed to hand it over or get proof they did may not so lucky. Where is that justice?

  32. But Sam, your comments dont take away the argument. Whether you are running a wetsuit/surfhire shack on a beach, a dairy farm or a software design company you need to know your business and it’s regulations. If you dont and you get it wrong you only have yourself to blame.

    Fairness or justice has nothing to do with it. Law is a queer fish.

    That social landlords operate under different systems is again, neither here nor there, it is what it is and later this year social landlords are also going to come under the remit of the Buck Bill and will have their own dirty linen to air.

    I too am a private renter and I have no problems whatsoever with my landlords who have been brilliant at every turn but my job is taking rogues to task and defending possession proceedings when they have gotten the paperwork wrong, which is 99% of the time.

    When I do this I am called all the names under the sun, but dont blame me….research your business instead.

  33. The trouble is petty stuff such as this could make landlords such as yours turn very very easily’rogue’. I bet most of the ‘illegal evictions’ are just desperate landlords who have had enough of a tenant using every trick in the book to stay in a property but not paying the rent. And just like some renters want more ‘security’ some of them I speak to say you should not be able to be evicted and this extends to even non payment of rent. So I would wager a fair % of people when they say this or that about landlords what they really want is to be rent free, and the politicians appeasing the more reasonable renters of society are in fact subsidizing the bad ones to. And like I said being a landlord is not seen as a business in the tax system hence no NI so for them to regulate like it is, is something akin to an oxy moron.
    .
    For eg did your ‘ ‘brilliant/ landlords’I ask you did they get you to sign all the relevant docs? Its all very well to point out its the law so no point complaining you could argue that what multinationals are said to get up to is all above board and ‘legal’ but many people think differently and some propose if its ‘legal’ perhaps the ‘law’ should be changed…

  34. Sam,
    I am the barrister who represented the tenant in this case. I also represent landlords – most barristers act for both landlords and tenants although many – usually as a factor of the chambers from which they operate – will tend to appear more often for one or the other.

    The difference between seeking possession under a s21 and a s8 Notice is that the former requires no fault by the tenant. Most social landlords will have far more assured tenancies than ASTs thus will not come up against the issue in this case – however that is because they don’t have the extra flexibility of the s21 process. They are of course bound by the various legislation requiring safe properties.

    You make the point as to burden of proof on whether certificates were received. Generally if a tenant asserts they did not receive a gas safety certificate a landlord will need to show they did – but while a signed, dated copy would be excellent evidence, in a case where there is no signed copy (and I agree many perfectly reputable landlords may be in that position – I haven’t dealt with it myself … yet) the court will do what it does and assess credibility. A court is faced with two parties either or both of whom may be truthful (or not). They make a judgment based on all the evidence; they don’t always get it right but EVERY judge I have been in front of was (in my estimation) doing their honest (often incredibly painstaking) best to do justice to the parties. A decision goes against you and you may consider a judge to have taken a view that favours the other party but they all seek to apply the law to the facts. That said, Ben’s point that Landlords or their agents will if they are sensible include all the documentation with the tenancy and get it signed (I know that doesn’t provide a time machine for landlords) should be printed on every letting agent’s wall in massive print. For what it’s worth I agree with you and many of Giles’ comments that some of the requirements are needlessly bureaucratic, however seeking to ensure gas safety from day one of a tenancy and throughout strikes me as a hugely important point. An unprotected deposit can be remedied with a penalty payment; a dead tenant cannot.

    On the reading of the law the requirement was held to be absolute – as HHJ Luba QC said, it may be for a higher court or parliament to decide they intended something different from what the words say. It is true that irremediable breaches (as is the failure to serve a gas safety cert in advance) do not usually appear to be what parliament / a minister intend to create, but that’s what this law says. This point has been considered by an experienced District Judge (now a Circuit Judge) and by HHJ Luba QC who (putting it conservatively) knows whereof he speaks.

    The impact on a non-compliant landlord, remember, is that they have a tenant who is not in breach of any term of the tenancy. They have simply lost the ability to recover possession without fault. Your point about tenants who want to be ‘rent free’ therefore isn’t relevant to this decision. No ‘bad tenants’ are being subsidised by this law because it has no application to tenants in arrears.

  35. Hi ‘Housing Barrister’ glad you agreed with some my points at least, if I may ask which ones exactly? Its well known that many section 21 cases use to be used for really what were arrears cases, because it wasmuch easier than arrears where a tenant could just pay before the hearing and the case would be dully thrown out. Or they could damage a property and claim a landlord has not repaired it and so took the rent money and paid for the repairs themselves to someone they (unknown to the landlord) know cuz they would rather give their mate money. Most landlords would need to bother with section 21 if section 8 was strenghned. Likewise longer tenancies is the call, the myth being landlrods dont want them, they DO, they understandibly do not want longer tenancies with the current tenancy system. Plus the unfairness that those pushing them are always keen to say a tenant would be free provided they give 1 months notice would be free to go for ANY reason which could be they found somewhere cheaper. Obviously if there were grounds such as say life changing accident effecting their parents and would need to look after them I would allow. But no reason needed?, So much for landlord security.

    Like I said though heal;h hazard warnings the landlord is given time to remedy the situation before action is taken so why not in this case especially if actually did the check (safety covered then) already just not handed it out? After all you state ensuring it is gas safe on day one of the tenancy, well if the gas cert is still valid before they move in, but runs out during the tenancy, it terms of being safe/valid it matetrs not whether they got the certificate before they moved in. It would be more of an issue if the landlord failed to get a new cert after the period expired.

  36. hence if a tenant is a fairly long term tenant and running into serious rent arrears following a renewal of tenancy, would it be a strategy, of sorts, to fail to give access to the landlord’s gas engineer so that the Landlord has no valid GSC nd cannot therefore serve a valid s21 notice?

  37. Hi Giles I am interested in your comments about whether a landlord can rectify this situation by issuing a GSC at the point of a new fixed term tenancy or a stat periodic tenancy commencing. You seem to imply that this could be possible. However the wording in the gas regs states that a valid cert must be served ‘BEFORE that tenant OCCUPIES those premises’. Can you therefore please elobarate a little more on how this wording could be interpreted in favour a landlord.

  38. I am also unclear if this CCJ only applies to tenancies that began after 1st Oct 15 or if it includes tenancies that began before this date but have been renewed or become SP after 1st Oct 15. Could you please clarify that.

    • Would include a new fixed term tenancy granted after 1 October 2015 (a renewal tenancy), but not a tenancy granted before 1 Oct 2015 that then became a statutory periodic after 1 Oct 2015.

  39. One can also argue for EPC, but not directly as in Gas Cert.

    EPC regulation that is relevant for AST 2015 No. 1646 is “(5) The relevant person must ensure that a valid energy performance certificate has been given free of charge to the person who ultimately becomes the buyer or tenant.”

    The reason is EPC 6 (5) does not define what “energy performance certificate” mean and “energy performance certificate” is defined in somewhere EPC 6 (2) (w).

    So, there is an arguement for finding the meaning of “a valid energy performance certificate has been given free of charge to the person who ultimately becomes the buyer or tenant” in other paragraphs or parts of EPC regulation.

    The counter arguement is definition of “energy performance certificate” is a definition of physical object and definition of “a valid energy performance certificate has been given free of charge to the person who ultimately becomes the buyer or tenant” is definition of timing.

    Wether court accepts or not is altogether a different question.

  40. If court accepts that whole EPC regulation can be used for finding the meaning of “a valid energy performance certificate has been given free of charge to the person who ultimately becomes the buyer or tenant”, then not not providing EPC at viewing can also be argued as unrectifiable.

  41. Yes, so why cannot be 6(2) used for finding the meaning of time limits?

    Other queston is,

    “Does AST 2015 No. 1646, by refering to only EPC 6 (5), impose conditions on or explicitly or implicitly remove inherent references of EPC 6 (5) to other parts or paragraphs of EPC 6?”

    Am I asking wrong question or thinking in not-the-way the law suppose tooperate?

  42. “You are not only seeking to import the meaning of EPC, but the time limits at 6(2).”

    The arguement is one cannot comply with EPC 6(5) without referring to EPC 2(w) “energey performance certifcate”.

    Therefore, why 6(2) cannot be referred for complying with “a valid energy performance certificate has been given free of charge to the person who ultimately becomes the buyer or tenant”?

    Have I made the argement lot more clear?

  43. I don’t have any issue with the obligation with the requirement to provide a certificate. However, it is the interpretation of the legislation that is the issue. If the real reason behind the judgement was gas safety, then clearly if a landlord has actual had a gas safety check done before the tenancy started, but just didn’t provide it, then the intent has been fulfilled. At the moment, my wife has served a Section 21 notice on a woman who denies she ever got one. My wife had it done, and then gave it to the tenant before she gave her the keys. In fact there is a clear record of the certificate, its date, and that previous tenants all got one. The tenant is out and out lying, but short of a selfie of them both holding the certificate, we are now dependant on evidence of character. Luckily the previous tenants all provided character witnesses.

  44. Then the question is, what is the point of having 6(2) with the added text of ‘prospective buyer or tenant’?

    I thought , the added text of ‘prospective buyer ot tenant’ in 6(2) creates inherent reference between 6(2) and 6(5) because 6(5) is applicable for both renting and buying, and AST 2015 No. 1646 is only relevant for renting, which you say is not the case.

    So, is it the case that 6(5) is there for the purpose of compliance in relation to rented properties?

    From practical point of view too. Say, a tenant receives EPC before s21 after having lived 19 months. What is the point of providing EPC after 19 months whereas EPC is used in decision making for renting a particular property?

    In buying too, which involves life changing financial decisions, what is the point of proving EPC, say 3 years down the line after having sold?

    May be house price or rent make all the difference than not having EPC, just a thought.

    Thanks.

    • You are mixing up different things. The EPC requirements are still there and are to be met, by landlords or sellers.

      But, obviously, the subsequently devised ‘penalty’ of being unable to serve a s.21 only applies to part (and only in regard to landlords and tenants not buyers).

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