The County Court decision in Caridon Property Ltd v Monty Shooltz is one that landlords of assured shorthold tenancies entered into on or after 1 October 2015 (or all assured shorthold tenancies from 1 October 2018) would be wise to take note of. Landlords entering into such tenancies should be well aware of the stringent requirements placed upon them when doing so and this recent case serves as an ominous reminder to them of the consequence of getting it wrong.
Background
In this case the landlord failed to serve its tenant, Mr Shooltz, with a gas safety certificate at the outset of the tenancy. Instead it did so several months after the tenancy commenced and, at around the same time, served a Section 21 notice on Mr Shooltz seeking possession of the property. The question, in its most general terms, was: when should the landlord have served the gas safety certificate so that the Notice was valid?
What Does the Legislation Say?
Section 21A(1) of the Housing Act 1988 dictates that a Section 21 Notice to recover possession of a property ‘may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement’.
The ‘prescribed requirements’ for the purposes of Section 21A can be found in the Assured Shorthold Tenancy Notices and prescribed Requirements (England) Regulations 2015 (the ‘AST Regulations 2015’). Regulation 2(1)(b) provides that one such requirement is contained within ‘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)’ (the ‘Gas Safety Regulations 1998’).
The relevant paragraphs of the Gas Safety Regulations 1998 state as follows:
(6) (a) a copy of the record made pursuant to the requirements of paragraph (3)(c) above [a reference to the landlords requirement to keep records of the checks carried out on appliances for a period of 2 years] 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.
The Outcome
A stringent interpretation of the law was applied. It was determined that Regulation 36 of the Gas Safety Regulations 1998 placed a clear, ‘once and for all’ obligation upon landlords to serve their tenants with the latest gas safety certificate before the tenant occupies the premises. In all the circumstances this seem appropriate as that regulation is in place for to protect tenants. Should the landlords omit to provide this information then their omission will not be capable of remedy and any subsequent section 21 notice served thereafter will be invalid. In other words landlords would not be able to seek possession via the accelerated possession procedure at all and will likely have to wait until tenants breach the terms of their tenancy before possession can be sought.
While the decision in Caridon Property Ltd v Monty Shooltz does not go as far as to say what the implications are for landlords who fail to comply with the other prescribed requirements (being the requirement to supply the government ‘How to Rent: The checklist for renting in England’ booklet and the Energy Performance Certificate) I would urge landlords to supply these as diligently as they would the gas safety certificate following this most recent case.
If landlords are in any doubt as to what they need to do at the start of an assured shorthold tenancy, what information they are required to provide to their tenant or when they should do so, it is recommended that they seek advice before entering into any such tenancy.