ALL CHANGE! County Court ruling says landlords must obtain gas certificate before an AST is created

A recent County Court decision may be bad news for residential landlords

In a recent case in the County Court at Luton Byrne v Harwood-Delgado the Judge (HHJ Bloom) found that a valid s.21 notice requiring possession under the Housing Act 1988 cannot be served if a landlord has not obtained a relevant gas safety certificate before the commencement of an Assured Shorthold Tenancy.

In a 2020 case Trecarrell House Ltd v Rouncefield the Court of Appeal concluded that the failure to provide a gas safety certificate prior to a tenant’s occupation did not prevent a landlord serving a s.21 notice as long as the relevant certificate had been given before service of the notice.

However, HHJ Bloom in the Byrne v Harwood-Delgado said that the facts before him were different to the Trecarrell case because the landlord did not have a gas safety certificate when the AST was entered into (whereas in Trecarrell there was a certificate but it was not provided). He said that “…one can distinguish between the situation where the landlord has made a trivial error and failed to serve a document and the situation where the landlord has failed to obtain any safety checks for the gas installations…” and that Parliament “…did envisage a basic minimum that there were checks before occupation...”

This meant that the landlord’s failure to obtain a gas safety certificate before the AST was created was fatal and could not be remedied.

Landlords have known for some time of the importance of getting their ‘ducks in a row’ in relation to gas safety before the AST starts but may have thought that a failure to do so could be remedied later on and before service of the s.21 Notice. Not so.

This is potentially very bad news for landlords. Whilst County Court decisions are not binding it is inevitable that tenants will raise this issue as a defence if possession proceedings are issued.

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For more information or any other litigation issue, contact Johanne Spittle on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email johanne.spittle@warekay.co.uk.