Caridon Property Ltd v Monty Shooltz. Central London County Court. 2 February 2018 (Now with approved transcript 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).
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.