Gas Safeties and Section 21’s…. Again!

In recent times, the legal world has seen its fair share of courtroom dramas, particularly those swirling around the exciting topic of the validity of Section 21 notices and the ever-important timely delivery of gas safety certificates (GSC).

For landlords, it can sometimes feel like venturing into a legal labyrinth, with cases such as Caridon Property v Monty Schultz, Assured Property Service Ltd v Ooo, Byrne v Harwood-Delgado, and Trecarrell House Limited v Patricia Rouncefield shining a spotlight on the need for scrupulous adherence to legal requirements before waving those Section 21 notices.

At the heart of these legal tangles lies the proper service and timing of GSCs, emphasizing compliance with Section 21A of the Housing Act 1988, which dictates that a Section 21 notice can’t be handed out if the landlord is juggling with a breach of prescribed legal requirements.

The root of these requirements lies in the Gas Safety (Installation and Use) Regulations 1998, specifically in the friendly-sounding Regulation 36(3). This rule requires landlords to give their gas appliances an annual checkup, with Regulation 36(6) adding that a Gas Safety Certificate must be handed to existing tenants within a cozy 28 days of the check. Also, don’t forget to share a copy of the last check with any new tenants before they move in.

Now, here’s where it gets interesting – recently we have seen the case of Van Herpen v Green and Green. In this case the tenant contested a Section 21 notice, claiming the gas safety certificate wasn’t served properly. The reason for this is because the landlord  installed a new boiler the day after the tenancy began, triggering the need for a Building Regulations Compliance Certificate (which moonlights as a GSC for up to 14 months).

There was a hiccup though – the landlord forgot to pass this certificate to the tenant, breaking Regulation 36(6) and leaving the Section 21 notice doing the limbo on shaky ground.

The second part of the claim that the notice was invalid, came about as a result of the new boiler throwing a tantrum within a few months of the install, prompting the gas engineer to revisit. The tenant argued that the works done during these visits amounted to gas safety checks, subsequently requiring the golden GSC.

The court agreed, pointing at Regulation 29(9) of the Gas Safety Regulations and declaring the engineer’s activities were a gas safety check.

As a result the Section 21 was thrown out. In this instance the landlord is left with a choice: appeal or start again by serving those GSCs before giving the Section 21 again. Here they could try and rely on the Trecarrell House case.

The Van Herpen tale serves as a cheerful reminder to landlords everywhere—stay on top of those Gas Safety Checks, and don’t forget to pass on the certificates.

Please note the date this article was published as the law or the essence may have changed since it was posted. You should always seek independent legal advice if you are intending to rely on any of the contents. Unless stated otherwise this article only reflects the position for the Private Rented Sector in England and therefore may not apply to other countries within the United Kingdom.