Under the Gas Safety (Installation and Use) Regulations 1998 (‘The Regulations’), you are required to carry out an annual Gas Safety Inspection. You are also required to give a tenant a copy of that certificate within 28 days of any such inspection and to give the current certificate to any tenant prior to occupation.
Serving a Section 21, Housing Act 1998 Notice on your tenant is a mandatory ground for possession against an Assured Shorthold Tenant. However, a Notice cannot be given when a landlord is in breach of a prescribed requirement, which includes those under The Regulations, save that the requirement is limited to only giving a copy of the relevant record to the tenant, as the 28 day Notice for compliance does not apply.
Up until now, it had been the view of many lawyers that failure to comply with The Regulations was fatal to the validity of a Section 21 Notice - and that a landlord would not, in these circumstances, be able to evict a tenant on those grounds.
There is now some good news. The Court of Appeal, in a decision on the 18th June 2020, decided that failure to provide a Gas Safety Certificate prior to a tenant’s occupation does not prevent a landlord serving a Section 21 Notice, as long as the relevant certificate is given before the Section 21 Notice is served.
Also, a failure to carry out the annual inspection in time is not fatal, so long as it is also given before the Section 21 Notice is served.
However, if a Gas Safety Certificate was not obtained before the tenant went into occupation, as this is a prescribed requirement it will probably mean that the landlord would not be able to serve a valid Section 21 Notice (although the Court did not make a specific ruling on this point).
Where a landlord fails to do the annual Gas Safety inspection, it’s probably less important, as the Judgment recognised that a duty to do an annual safety inspection was not a prescribed requirement for the purposes of Section 21 Notices. Therefore, you could probably remedy the situation if you do an annual inspection and then serve the Certificate before a Section 21 Notice is served.
So, if you have not had any Gas Safety checks, do so immediately and serve the certificate on your tenants as soon as you obtain them.
Gary can be contacted by email at: email@example.com and by phone on: 01603 625231.