A landlord who rents their property to a tenant under an assured shorthold tenancy (“AST”) is responsible for complying with the Gas Safety (Installation and Use) Regulations 1998 (“the Regulations”). As well as a general duty to maintain in a safe condition any relevant gas fitting or flue serving the gas fitting, the Regulations require landlords to carry out regular checks and to provide records of those checks to their tenants. This week’s Legal Update serves as a reminder of those duties, and the consequences in the event of a failure to comply.

Landlords’ responsibilities for gas safety checks

The Regulations provide that :

Whilst landlords will no doubt be aware of their duties under Reg 36(6), Reg 36(7) is perhaps a lesser known duty. This will apply, for example, where there are no gas appliances in the property but the property is served by a communal gas appliance such as a communal boiler providing hot water and heating acorss the block.

Consequences of failure to comply with the requirements for gas safety checks

Most landlords will be aware that, in relation to ASTs granted (and any fixed term coming to an end) on or after 01 October 2015, they will be unable to serve a notice under Section 21 of the Housing Act 1988 (“the Act”) until they have provided  the tenant with a copy of the gas safety records. 

However, non-compliance with the timeframes set out in Reg 36(a) and (b) of the Regulations will not invalidate the Section 21 Notice, as long as the certificates were provided to the tenant before they were served with the Section 21 Notice. This was the decision in the case of Trecarrell House Limited -v- Patricia Rouncefield [2020] EWCA Civ 76 (see here), which was specifically a case concerning a gas safety record required to be given to the tenant under Reg 36(7) in relation to a communal boiler housed elsewhere in the building (e.g. not in the flat occupied by the tenant). Whilst a gas safety check of the communal boiler had been carried out before the tenancy was granted, that record had not been displayed in a prominent position (or given to the tenant) before she took up occupation of the property. The Court of Appeal held that this was not fatal to the claim for possession based on a Section 21 Notice, but that evidence was required that the check was given to the tenant before the Section 21 Notice was served. 

The position is different, however, if no check was carried out at all before the tenant moves into the property. In Byrne -v- Harwood-Delgado (2002) (see here), the Court held that a failure to have the gas safety check carried out before the tenant occupies the property would mean a landlord is unable to serve a Section 21 Notice. The Court drew a distinction between a failure to provide the record to the tenant within time, and a failure to undertake the check at all.

When it comes to issuing a claim for possession based on Section 21 of the Act, the Court requires copies of all gas safety records to be attached to the claim form and the dates those records were given to the tenant to be confirmed. It is therefore imperative that all records are maintained and a clear paper trail is retained, to evidence when (and how) those records were given to the tenant.

A failure to comply with the Regulations in relation to ASTs granted before (and where the fixed term expires before) 01 October 2015 will not prevent a Section 21 Notice from being served, as confirmed by the Court of Appeal in Minister -v- Hathaway & Hathaway [2021] EWCA CIV 936 (see here). Such failure also does not affect the landlord’s ability to serve notice under Section 8 of the Housing Act 1988, e.g. relying on grounds for possession (such as a rent arrears).

However, it is important to note that other sanctions are available even if any such failure does not affect the validity of the Section 21 Notice. A failure to comply with the Regulations is a criminal offence, which the Health and Safety Executive has the power to enforce and prosecute. Such an offence entitles a Local Authority to apply to the FTT for a Banning Order in respect of the landlord, under the Housing and Planning Act 2016.

Conclusion

It is imperative that landlords take their duties to ensure that their properties are safe seriously. Failure to do so can have severe consequences, and may prevent them from taking back possession of their property through the non-fault Section 21 procedure. Any landlord who is unsure of their obligations should seek the assistance of an experienced letting agent or specialist solicitor, both before arranging the letting and before serving any notice under Section 21, to ensure that the correct procedures have been observed and such a notice can be served.

Please feel free to speak to a member of the team regarding this Legal Update on 01435 897297 or info@kdllaw.com.

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