Reasons to choose Wilson Browne
On 6 April 2018 Regulation 36 of the current provisions which require a Landlord to carry out a Gas Safety check on any appliance or flue in the dwelling of intervals of not more than 12 months will be amended….
…so that the Landlord may elect to postpone that check by up to 2 months to allow for multiple checks to multiple appliances or flues to be carried out at the same time.
That election may only be made once in relation to each appliance or flue in the premises and may only be made in order to align the safety check dates. This will be welcome news to social housing providers who can streamline their safety checks more economically and effectively.
The most disturbing news is the handing down of the judgment in Caridon Property Limited –v- Monty Shooltz (2018). It is understood that from the 1 October 2015 all Landlords of Assured Shorthold Tenancies which were created or renewed on or after that date must have served a Gas Safety Certificate and Energy Performance Certificate on the Tenants before the Tenancy starts.
The general view was that these documents could be served after the Tenancy began but prior to service of a Section 21 Notice despite that being not what the Regulation wording actually states Regulation 2 of the Assured Shorthold Tenancy Notices and prescribed requirements (England) Regulations 2015.
In Caridon the Gas Safety Certificate was served some 11 months after the creation of the Assured Shorthold Tenancy, but before service of the Section 21 Notice. The Possession Order was refused as the Judge did not accept that this was sufficient to satisfy the Rules. The case was appealed and the Appeal Judge upheld the decision of the County Court Judge.
Whilst this is only a County Court Appeal and as such not generally binding, it will be difficult for any District Judge in London to dissent and it will have potentially a persuasive effect elsewhere. It may be that the Court of Appeal will find differently if any case is appealed further or it may be that the Ministry of Housing Communities and Local Government will amend those Regulations.
Please note that there is no “turning back the clock”. If you have not served your Gas Safety Certificate on your Tenants before they are given the keys on a post 1 October 2015 Assured Shorthold Tenancy Agreement, then any subsequent Section 21 Notice will be invalid.
Whilst there is no similar guidance on Energy Performance Certificates it is expected that the same Rules would also apply.
If your property is one that does not have gas and/or an EPC is not required, then you will need to keep a record of this.
If your Assured Shorthold Tenancy pre-dates the 1 October 2015, then this will currently not apply to you, however from 1 October 2018, the Rules which came in on 1 October 2015 will apply to every Assured Shorthold Tenancy Agreement even if it pre-dates 1 October 2015.
If you have a difficult Tenant who you want to evict using the Section 21 procedure, but where the Gas Safety Certificate and/or the Energy Performance Certificate was not served at the start of the Tenancy on a pre 1 October 2015 Agreement, then you should take steps to evict them well before 1 October 2018.
If you have a post 1 October 2015 Agreement where you have not served the Gas and/or EPC Certificate at the start of the Tenancy, then I would strongly recommend you avoid a Section 21 Notice and instead use one or more of the grounds under Section 8 instead.