Since 1 October 2015 in addition to the paperwork sent to a tenant proving compliance with the deposit registration regulations, Landlords have had to make sure that tenants have received the appropriate energy performance certificate, the government’s “How to Rent” guide plus the gas safety certificate where a property has any gas appliances.
Before last month, it was common practice simply to re-serve each of these documents immediately before, or indeed at the same time as, giving a tenant the usual 2 month notice required by Section 21. Many Managing Agents have done this, even where the documentation might have been given to a tenant at the very start of the initial tenancy.
However, this practice might have to be reviewed in light of the decision of His Honour Judge Luba QC in the case of Caridon Property Limited –v– Monty Shooltz heard in the County Court at Central London this February.
The Judge has pointed out that the necessary regulations that followed the implementation of the Deregulation Act 2015 stipulate that one can only serve a Section 21 notice if the landlord or his agent has fully complied with paragraphs 6 and 7 of regulation 36 of the Gas Safety (Installation & Use) Regulations 1998.
These in turn require the gas safety certificate to be served on an existing tenant within 28 days of the check being completed. Of itself, this would not be a problem as the 2015 regulations state that the original 28 day compliance period need not apply.
However the 1998 rules also state quite clearly that a gas safety certificate must be given to “any new tenant of premises……..before that tenant occupies those premises”.
So where are we now? Decisions of the County Court are not binding on other parts of the judicial system. However, Judge Luba is a well-respected Judge whose decisions are bound to be heeded at least in the London area if not further afield.
Ironically, if a tenant is on a second or subsequent fixed term tenancy, it may not be so much of an issue provided you can show that before the latest contractual term started, the tenant had indeed received a valid gas safety certificate for the preceding term. Whether His Honour Judge Luba agrees, remains to be seen.
Meanwhile, various trade bodies are making representations to the newly re-named Housing Ministry who are already aware of the problem.
For anyone letting residential property, it is now more important than ever to have a paper trail and to be able to prove that a gas safety certificate was given to a tenant “before” they take up occupation under an assured shorthold tenancy.
For advice on this and all other letting issues contact a member of our Landlord & Tenant Department on 023 8022 1344 or 01202 315005