The gas may be safe but is the decision in Caridon Property Ltd v Monty Shooltz?
In February 2018, the county court appeal decision in Caridon Property Ltd v Monty Shooltz sounded a warning to all landlords of assured shorthold tenants. The circuit judge, HHJ Jan Luba QC, found that the landlord’s failure to issue a gas safety certificate to an assured shorthold tenant before he moved into the premises meant the landlord could not rely upon Section 21 of the Housing Act 1988 (as amended by the Deregulation Act 2015) (“the HA 1988”) to terminate the tenancy and recover possession.
The claim was brought by a tenant of an assured shorthold tenancy. Under Section 21 of the HA 1988 a court can make an order for possession of a property if the tenancy has come to an end and the landlord has served a valid Section 21 notice. This case turned on the validity of the notice.
Under Section 21A of the HA 1988, a notice will be invalid if the landlord is in breach of a prescribed requirement. Some of the prescribed requirements are found in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the AST Regulations”). Under the AST Regulations, landlords must comply with the Gas Safety (Installation and Use) Regulations 1998 (“the Gas Regulations”).
Under Regulation 36(3) of the Gas Regulations, landlords must make a record of any appliance or flue that is checked and maintained, and under Regulation 36(6) of the Gas Regulations:
- the landlord must give a copy of that record to each existing tenant within 28 days of the date of the check; and
- the landlord must give a copy to any new tenant of premises to which the record relates before they enter the premises (except where the tenant will occupy the premises for less than 28 days).
In this case, the landlord had not served the gas safety certificate before the tenant moved into occupation, but did provide a copy 11 months into the tenancy. At first instance, DJ Bloom found that the landlord had breached Regulation 36(3) of the Gas Regulations, making the Section 21 notice invalid. The landlord’s appeal was dismissed by HHJ Jan Luba QC, an experienced housing lawyer. The judge decided that Regulation 36(6)(b) must be strictly complied with and a failure to do so within the stated timeframes meant that the landlord had lost the right to serve a Section 21 notice on its tenant. Further, he considered that landlords have no ability to rectify this breach once the deadline had been missed.
HHJ Jan Luba QC interpreted the legislation very restrictively. Whilst not generally binding as a county court decision, the likely effect remains that, in relation to assured shorthold tenancies that commenced after 1 October 2015, landlords who failed to give their new tenant a copy of the gas safety certificate before they entered the premises will not be able to serve a Section 21 notice. It is yet to be seen whether the Government will consider this judicial interpretation as too narrow and not what Parliament could have intended. We may therefore expect to see amendments made to the Gas Regulations. Alternatively, there could still be an appeal to the Court of Appeal. Any developments will no doubt be eagerly awaited by landlords of assured shorthold tenants.