Assured Property Services Ltd v Ooo 2017 – Gas Certificate:
This is a County Court case so could be overturned on appeal, but it does appear at first sight to have very important implications for landlords and agents with assured shorthold tenancies (AST) commencing on or after the 1st of October 2015, and all AST tenancies on or after 1st October 2018.
This article applies primarily to English law. Although tenancy laws are similar in other jurisdictions, there may be significant differences. Always seek professional advice before making or not making important decisions.
The Deregulation Act 2015, which introduced legislation making it a requirement to serve on the tenant certain pieces of pre-tenancy information, which includes:
- A current Energy Performance Certificate (EPC), these last for 10 years
- Where relevant, a current Gas Safety Certificate – renewed every year
- The current edition of the government’s “How to Rent” Guide
This case (Assured Property Services Limited v Ooo) tried at Edmonton County Court on 31 June 2017, involved the late serving of Gas Safety Certificate, and the subsequent serving of a Section 21 notice, which the tenant claimed was invalid.
Generally accepted advice has been, since the introduction of this legislation, that these notices can be served late, providing this occurs before serving a section 21 notice. This case throws that practice into doubt, and unless and until the case is appealed, that practice, it seems, will be wrong.
The case has far reaching implications as any post 1st October 2015 AST, as it stands, where a current gas safety certificate has not been served on the tenant at the start of the tenancy, no valid section 21 notice can ever be served on that tenant.
Details of the case are as follows:
Assured shorthold tenant Ms Ooo was served a Housing Act (HA) 1988 s21 notice by her landlord’s agents Assured Property Services Limited. Following an application to the county court, District Judge Cohen made out a possession order under the accelerated procedure without a court hearing.
Ms Ooo made out an appeal, an application to set aside the order on the basis that no gas safety certificate had been provided at the commencement of the tenancy (or in this case subsequently).
The landlord had accepted that no gas safety certificate was provided at the commencement of the tenancy, but contested the claim that no certificate was served subsequently.
District Judge Lethem found that the landlord had contravened Gas Safety (Installation and Use) Regulations 1998 SI No 2451 reg 36(6) by not serving a gas safety certificate prior to occupation of the premises.
This then brought into play the 2015 regulations, Notices and Prescribed Requirements (England) Regulations 2015 SI No 1646 reg 2(1)(b), that meant their omission invalidated the s21 notice.
District Judge Lethem therefore set aside the possession order issued earlier and awarded costs to the tenant at Edmonton County Court on 30 June 2017.
Regardless of whether the case is appealed and overturned, as experts think that this was not the intention of Parliament, there are some important lessons here for landlords and agents. They should make sure that they comply to the letter with all the new requirements for post Oct 2015 tenancies, and this will apply to ALL tenancies post 1st Oct 2018.
It is recommended that on the commencement of every tenancy the tenant receives and signs for (proof of service is very important):
- A current EPC
- A current Gas safety Certificate
- The current copy of the government’s “How to Rent” Guide*
As with the deposit protection information (deposit must be protected within 30 days of receipt) it is recommended that these three documents are now made integral with the tenancy agreement, and therefore they are signed for and delivery cannot be refuted.
*Note, There are several versions of the How to Rent Guide, and it’s important that the current version is used – see our archive of editions here: https://www.landlordzone.co.uk/documents
It is important to note that sending copies of these documents via email is acceptable, providing the tenant has agreed to accept them in this way, supported by a reference in the tenancy agreement, but a full document must be sent, not just a link to a government website. However, it is, as recommended above, preferable to provide hard copies along with the agreement, as it is difficult to get proof of delivery when emailed.