What Are The Requirements With Regards To Gas Safety At A Property When Obtaining Possession

Section 21 of the Housing Act 1988 is presently used by landlords to recover possession of a property rented out on an assured shorthold tenancy. This method of repossession is often described as ‘no-fault eviction’ as it does not require fault on the part of the tenant.

A valid Section 21 notice requires strict compliance with a number of statutory requirements, including the provision of prescribed information, one of the most significant being the Gas Safety Certificate (“GSC”).

Failure to comply with such obligations may result in the Section 21 notice being deemed invalid, which can lead to protracted and costly litigation or losing the claim altogether.

What is a Gas Safety Certificate?

A Gas Safety Certificate is a document issued by a Gas Safe registered engineer following an inspection of gas appliances, pipework, and flues in the property. The Certificate demonstrates that all relevant installations are safe and compliant with the Gas Safety (Installation and Use) Regulations 1998, under which landlords are required to:

• Arrange an annual gas safety check;
• Provide a copy of the GSC to existing tenants within 28 days of the check; and
• Provide a copy of the GSC to new tenants prior to the commencement of the tenancy.

What Should a Gas Safety Certificate Contain?

For a GSC to be compliant, it must record the information required by Regulation 36 of the Gas Safety (Installation and Use) Regulations 1998.

The GSC must include:

(i)  the date on which the appliance or flue was checked;

(ii) the address of the premises at which the appliance or flue is installed;

(iii) the name and address of the landlord of the premises (or, where appropriate, his agent) at which the appliance or flue is installed;

(iv) a description of and the location of each appliance or flue checked;

(v) any safety defect identified;

(vi) any remedial action taken;

(vii) confirmation that the check undertaken complies with the requirements of paragraph (9);

(viii) the name and signature of the individual carrying out the check; and

(ix) the registration number with which that individual, or his employer, is registered with a body approved by the Executive.

Relevance of the GSC in Section 21 Possession Proceedings

The Deregulation Act 2015 Act provides that a Section 21 notice may not be validly served in relation to an AST entered or renewed on or after 1 October 2015, if the landlord is in breach of a prescribed requirement, including the GSC. If a GSC is not served before the tenancy begins, the landlord risks losing the right to rely on a Section 21 notice altogether.

However, the Court of Appeal ruling in Trecarrell House Ltd v Rouncefield (2020) held that late-service of a GSC in force prior to the start of a tenancy may not automatically invalidate a Section 21 notice, provided that service of the GSC is effected before service of the Section 21 itself.

On a similar note, failure to provide the tenant with a GSC annually can also be rectified in this manner by ensuring that each GSC is served prior to service of the Section 21 notice. However, the Court have stated that absence of a GSC before the tenancy commenced precludes the landlord from utilising the Section 21 route altogether. This non-compliance cannot be rectified in the same way as the GSC for the relevant period does not exist.

Tips to Ensure Compliance

To avoid the risk of an invalid Section 21 notice, landlords must take proactive measures to ensure
full compliance with their gas safety obligations. These include:

• Carrying out annual checks on time, and avoiding large gaps between certificates.
• Serving the certificate on new tenants prior to occupation, not afterwards.
• Acquiring proof of service, such as signed acknowledgement, email confirmation or read receipts.

It is good practice to integrate these steps into tenancy onboarding process and store all documentation securely as they will be required for future reference. Non-compliance can have significant and expensive consequences.

If you’re seeking legal advice regarding safety concerns in your property, please contact our Property Dispute team on 0330 822 3451 to discuss your circumstances. Alternatively, you can request a call back online.