In relation to tenancies starting or renewing on or after 01 October 2015, if a Landlord failing to serve a gas safety certificate on the Tenant prior to them moving into the property, the Landlord will be precluded from using section 21 of the Housing Act 1988 (“HA”) to obtain possession of the property on no-fault grounds. Whilst Landlords can still end the tenancy by serving notice under section 8 of the HA, this usually requires some wrongdoing by the Tenant, and thus this course of action would not be available if the Tenant was not in breach.
Discussing the case of a boiler placed outside the flat
This February 2019, a case involving an AST granted on 20 February 2017 was considered. In this case, a boiler outside the flat provided hot water and heating. The tenant had not provided or displayed a gas safety certificate before the start of the tenancy. However, the landlord had provided one before serving a Section 21 Notice.
At first instance, the judge decided that with the boiler outside the property (and with the pipes carrying water and not gas), the landlord had no requirement to provide a certificate. And even if there was, the judge held that there was no absolute time limit on when the gas safety
certificate could be provided for the purpose of the Landlord serving a Section 21 Notice.
The judge considered that it must not have been the intention of those who drafted the legislation that it was not possible for a Landlord to remedy their breach. Not if they failed to comply with the requirements at the commencement of the tenancy.
At Appeal, the Tenant argued that the judge at first instance was wrong. Also, even if there was no requirement to provide a certificate, the Landlord ought to have displayed one. So being unable to remedy this, it became impossible to rely on the Section 21 Notice that had been served.
The Appeal judge found in favour of the Tenant. They concluded that the Landlord’s failure to comply with the legislation could not be remedied. Also, they concluded that Section 21 was not available to the Landlord as a means of obtaining possession of the property.