The importance of obtaining gas safety certificates before any AST is created

A recent county court ruling is potentially very bad news for landlords and purchasers of a dwelling house which is subject to an assured shorthold tenancy.

In a county court appeal against an order for possession on a point of law, (Byrne v Harwood-Delgado[1]), HHJ Bloom sitting in the County Court at Luton, found that a s.21 ‘no-fault’ notice under the Housing Act 1988 is not available as a means of ending a tenancy if a landlord has not procured a relevant gas safety certificate[2] “GSC” (or gas safety record as described in the regulations)) prior to the commencement of an Assured Shorthold Tenancy and that the situation cannot be remedied. 

Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 reg.2(1) provides that for the purposes of s.21A (as amended) of the Housing Act 1988 (‘the Act’) a notice pursuant to s.21 of the Act may not be given at a time when the landlord is in breach of a prescribed requirement relating to the condition and energy performance of dwelling houses and the health and safety of the occupiers.

The above includes the requirement for a landlord to obtain and provide the tenant with a GSC and an energy performance certificate.  There is a dispute as to whether the tenant in this case actually received a GSC prior to the commencement of the AST - there were subsequent renewals of the AST and GSCs appear to have been obtained and provided to the tenant. 

On appeal HHJ Bloom referred to the Trecarrell House[3] case and found:

1. the facts in this case could be distinguished from Trecarrell House because there had been a substantive failure. i.e. a GSC had not been obtained prior to the commencement of the tenancy  [para 40]:” …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...” [Para 41].
2. that the landlord’s failure to obtain a GSC before the commencement of the tenancy could not be remedied by the service of a GSC produced after the tenancy commenced.

The upshot of this decision is that if a landlord did not obtain a GSC prior to the commencement of the tenancy the position is irremediable and the landlord cannot serve a s.21 notice to end the tenancy.

This is potentially very bad news for landlords and purchasers of a dwelling house which is subject to an assured shorthold tenancy.

While as a judgment of a county court circuit judge it is not binding, it will be useful ammunition for tenants who are opposing s.21 ‘no-fault’ based claims for possession and may therefore influence another judge’s decision.

We will have to wait and see if this case goes to the court of appeal, or indeed another case does.  Presently, unless the landlord in this case is seeking to occupy the dwelling house itself or the tenant is in breach of its covenants in the tenancy, then there may be limited opportunities to determine an Assured Shorthold Tenancy unless a s.8 ground for possession (schedule 2) of the Housing Act 1988 exists.