Gas Safety Rules Every Landlord Must Get Right

Recent case law and the looming Renters' Rights Act have significantly focussed attention on the procedural requirements for landlords, particularly regarding the Gas Safety Certificate (“GSC”) and the use of Section 21 notices and the so-called (and misleadingly-named) ‘no fault’ evictions.

A landlord's failure to adhere to the Gas Safety (Installation and Use) Regulations 1998 (“the Regulations”) has often been fatal to any attempt to utilise the Section 21 procedure to obtain possession of a property.

What are the gas safety requirements?

Under the current assured shorthold tenancy (AST) regime, landlords must satisfy certain prescribed requirements before a Section 21 notice can be validly served.

The specific requirements regarding gas safety are:

• A copy of the relevant GSC must be provided to the tenant before they occupy the property.

The County Court appeal of Byrne v Harwood-Delgado established that a failure to provide the GSC before the tenant moves in is irremediable and will forever invalidate the landlord's ability to utilise the Section 21 process for that tenancy. In essence, a landlord will be prevented from regaining possession of their property unless they can utilise the Section 8 process on specific, fault-based grounds. This is arguably a severe sanction for a procedural oversight.

• Under the Regulations, the gas safety check must be carried out every 12 months by a Gas Safe registered engineer, and a copy of the new GSC must be provided to the tenant within 28 days of the inspection.

What happens when a landlord misses a 12 month check? Unlike the failure to provide the initial GSC when the tenant moves in, which is irremediable, any GSCs relating to subsequent years can be provided to the tenant late, provided they are served before any Section 21 notice is served (per Trecarrell House Ltd v Rouncefield).

• The Regulations require that a landlord retain the last two years’ gas safety records, or the last two records if a service has not been carried out annually.

Whilst this is a statutory requirement for landlords to comply with, historically it has not been of relevance in relation to the validity of Section 21 Notices. As decided in Trecarrell House Ltd v Rouncefield, it is sufficient for landlords to serve only the most recent GSC prior to serving a Section 21 Notice.

The recent County Court Appeal of Cassell & Cassell v Sidhu & Sidhu

In Cassell & Cassell v Sidhu & Sidhu, the Judge held that a failure to provide an initial GSC could indeed be remedied and that an otherwise diligent landlord was entitled to regain possession. The Judge held that as the Regulations require landlords to retain either the last two years of GSCs, or the last two valid GSCs, Parliament’s intention cannot have been that landlords must retain evidence of all GSCs going back beyond this period, for example back to the initial GSC. As such the Judge held that the last two valid GSCs would be sufficient prior to service of a Section 21 Notice.

Whilst this is a welcome decision in respect of potentially assisting where an initial GSC was not undertaken, best practice would be to ensure a landlord has retained, and has served on the tenant, the initial GSC prior to their occupation and last two GSCs prior to serving a Section 21 notice.

Gas Safety under the Renters’ Rights Act

While the link between GSCs and the inability to serve a Section 21 notice will become redundant, it is not presently clear whether there will be any similar requirements in the Renters’ Rights Act (“the Act”).

Under the Act, landlords will only be able to obtain possession on specific grounds, such as a landlord wanting to live in the property themselves. Importantly, there is currently no requirement for landlords to have complied with the gas safety regulations before serving a notice.

The Act proposes a new property portal/database where landlords will have to register their properties. It may be that evidence of up-to-date gas safety compliance will be a prerequisite for registration, but that is yet to be seen. 
 

Advice for landlords

The message is clear: Landlords must be proactive in complying with the Regulations.

1. Always ensure a valid GSC is in place and delivered to the new tenant before they are given the keys and occupy the property.
    
2. Schedule annual gas safety checks proactively. Do not allow a certificate to expire without arranging for a new check to be undertaken and serve the new GSC on the tenant immediately after the inspection.
    
3. The Renters' Rights Act has now been passed and will be coming into force in the very near future. Landlords should review their current documentation and ensure all safety and legal requirements are met now, as non-compliance may jeopardise their ability to use future grounds for possession.
    

Consulting with a legal specialist is essential for navigating the complexities of tenancy termination notices and for preparing your property portfolio for the significant regulatory shifts anticipated by the Renters' Rights Act. If you have any queries in relation to the new legislation or how to adapt or to prepare for the new statutory regime, the Property Disputes Team at Hughes Paddison can assist. Please contact Jo Lingard on 01242 586 357 or at jli@hughes-paddison.co.uk.