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.
This February 2019, a case was considered and involved an AST granted on 20 February 2017. Hot
water and heating were provided by a boiler outside the flat. No gas safety certificate had been
provided or displayed before the start of the tenancy, but one was served prior to the Landlord serving
a Section 21 Notice.
At first instance, the Judge decided that as the boiler was not within the demised property and the
pipes within it carried water and not gas, there was no requirement for the Landlord to provide a
certificate and even if there was, the Judge held that there was no absolute time limit on when the
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 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 and that even if there was no
requirement to provide a certificate, the Landlord ought to have displayed one, and being unable to
remedy this, reliance on the Section 21 Notice that had been served was not possible.
The Appeal Judge found in favour of the Tenant and concluded that the Landlord’s failure to comply
with the legislation could not be remedied and that Section 21 was not available to the Landlord as a
means of obtaining possession of the property.