Landlords beware: invalid section 21 Notice due to failure to serve gas safety certificate

The recent case of Caridon Property Ltd v Monty Shooltz (2018) has held that landlords cannot obtain possession of residential premises from a tenant held under an Assured Shorthold Tenancy (“AST”) in reliance on a section 21 Notice if they did not serve a valid gas safety certificate before the start of the tenancy.

The law

The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (the “Regulations”), which came into force following the Deregulation Act 2015, apply in relation to an AST of a dwelling-house in England granted on or after 1 October 2015. These provide that the landlord must provide the tenant with:

• an energy performance certificate;
• a gas safety certificate; and
• a document entitled “How to rent: the checklist for renting in England” (a Government-published guide which sets out rights and responsibilities of the landlord and tenant),
• free of charge, at the start of the tenancy and before the tenant moves in.

Serving a section 21 Notice (under section 21 of the Housing Act 1988 (the “Act”)) is the first step a landlord takes to evict their tenant following expiry of the fixed term (unless a landlord can rely upon tenant default such as non-payment of rent or other breaches of the tenancy).

Under section 21A of the Act (as amended by the Deregulation Act 2015), a section 21 Notice cannot and will not be validly served on the tenant if the landlord does not comply with a “prescribed requirement” – including provision of the requisite documents outlined above in accordance with the Regulations. Up until the Shooltz decision it was generally considered that failure to serve the prescribed documents could be rectified later so long as this was before service of the section 21 Notice.

The case

Mr Shooltz, a tenant, had rented a property from Caridon Property, a landlord, under an AST which began after 1 October 2015. At the start of the tenancy and before Mr Schooltz moved into the premises, Caridon Property failed to serve a gas certificate on him. Instead, it served this document 11 months into the tenancy. Following the landlord’s subsequent service of a section 21 Notice and instigation of possession proceedings against Mr Shooltz, the Court in the first instance was asked to consider whether the section 21 Notice was in fact valid.

District Judge Bloom found in favour of Mr Shooltz: she held that the Notice was invalid and refused to grant a possession order. On the landlord’s appeal, the matter was heard before His Honour Judge Jan Luba QC, a renowned housing lawyer and co-author of the textbook ‘Defending Possession Proceedings’.

HHJ Luba QC upheld the decision of DJ Bloom. In doing so, he considered the intentions of Parliament in drafting the Regulations, and the seriousness of compliance, or in this case non-compliance, with health and safety conditions. In particular, he noted that compliance with the landlord’s obligations were “once and for all”, and that as soon as an opportunity to provide the necessary documentation had been missed, there was “no sense in which it can be rectified”.

Moreover, he said that if Parliament’s intention had been that, in the absence of such compliance, a landlord could still serve a valid section 21 Notice, the Secretary of State would have simply included a provision to disapply those parts of the Regulations, which of course it had not.

Despite the fact that County Court decisions are not generally binding, given HHJ Luba QC’s reputation this judgment will most likely be a highly influential one unless and until there is a decision of a higher court or the Regulations are amended. It will further provide a useful tool within a tenant’s armoury to challenge a section 21 Notice’s validity. That being said, the decision is a recent one and has not been further tested by reference to the other documents stipulated under the Regulations, being the provision of an energy performance certificate and ‘How to Rent’ documentation. However, as it stands this case serves as a very cautionary tale to landlords and the implications they might face, i.e. an inability to regain possession of a property, if these important statutory provisions are not complied with.