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New section 21 requirement: Gas safety certificates

From the 1st October, the use of section 21 notices for new assured shorthold tenancies in England will be subject to additional requirements (following new section 21A added by the Deregulation Act).

Landlords will be required to have complied with EPC and gas safety regulations in order to be able to serve a valid notice. (see another post for EPC requirements).

In relation to gas safety, the pre-requisites to serving a valid s.21 notice are (defined in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015):

2.—(1) Subject to paragraph (2), the requirements prescribed for the purpose of section 21A of the Act are the requirements contained in—

(a) …

(b) paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (requirement to provide tenant with a gas safety certificate).

(2) For the purpose of section 21A of the Act, the requirement prescribed by paragraph (1)(b) is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply.

Paragraphs (6) and (7) of the Gas Safety Regulations set out existing duties to provide gas safety certificates to tenants:

(6) Notwithstanding paragraph (5) above, every landlord shall ensure that—

(a) a copy of the record made pursuant to the requirements of paragraph (3)(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and

(b) a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.

(7) Where there is no relevant gas appliance in any room occupied or to be occupied by the tenant in relevant premises, the landlord may, instead of ensuring that a copy of the record referred to in paragraph (6) above is given to the tenant, ensure that there is displayed in a prominent position in the premises (from such time as a copy would have been required to have been given to the tenant under that paragraph), a copy of the record with a statement endorsed on it that the tenant is entitled to have his own copy of the record on request to the landlord at an address specified in the statement; and on any such request being made, the landlord shall give to the tenant a copy of the record as soon as is practicable.

Every time an annual gas safety check is carried out a copy of the certificate must be given to the tenant within 28 days, and a copy of the current certificate must be given to a new tenant before he moves into the property.

What does it all mean?

At face value this might suggest rather harsh pre-requisites. Indeed, if paragraph (6)(a) and, especially (6)(b) have not been complied with there is no way to ‘fix’ it and therefore no way to ever serve a valid s.21 notice… Ouch.

However, section 2(2) of the new regulations states that the requirement for the purpose of section 21A is only to give a copy of the relevant gas certificate without any deadline.

Therefore, my interpretation is that landlords will only have to do just that in order to serve a valid s.21 notice, even if this means giving the certificate the day before serving notice.

That being said, these pre-requisites are brand new and, I must say, poorly drafted so there might be scope for a future upset through case law.

Landlords have in any case the duty to comply with the full gas safety regulations and therefore these pre-requisites should already be complied with as a matter of course even in their strictest interpretation.
It will become even more important, though, to get evidence, e.g. by asking tenants to sign a receipt.

Lastly, there is no requirement to provide a new copy of the certificate every time a new tenancy is created.

What about HMOs?

HMOs are covered by paragraph (7) of the Gas Safety Regulations. A Landlord is essentially only obligated to display of copy of the certificate and to provide copies on demand.

However, it is not clear (at least to me) how to interpret this together with section 2(2), which states that the requirement is to give a copy of the certificate.

Therefore, the safe option for the time being is to give a copy of the certificate to HMO tenants as a matter of course, and of course to get proof.
There is, in any case, no deadline to do so in paragraph (7).

Access issues

This new restrictions on the use of s.21 might give an incentive to rogue tenants to prevent access for annual gas safety checks.

Arguably, gas safety checks fall within s.11 of the Landlord an Tenant Act 1985. If so (or, if not, they do if carried out in conjunction with a service) landlords have a right of access upon 24 hour notice and tenants cannot lawfully prevent access.

However, this is prone to all sorts of problems and allegations so landlords should be extremely careful and not act without proper legal advice. It is possible to seek a court injunction to force the tenant to grant access.