Legal notes: serving notice when there is no current gas safety certificate

When a tenant refuses the Gas Safe engineer access to a property to carry out gas safety checks the landlord is presented with a really difficult problem.

Tenants denying access for things like safety checks, repairs and maintenance or regular inspections is not unheard off, in fact it occurs frequently, and it is one of the many hazards of being a landlord. But, failing to have a gas or electrical safety record carries a penalty of up to £30,000 and possibly even more for not having both.

To some extent the law protects tenants in that they are entitled to what’s termed “quiet enjoyment” which in practice means giving them the space to enjoy the property as their own and not interfering with their lives or in any way harassing them. Tenant harassment is in fact a criminal offence controlled under the Protection from Eviction Act 1977. Landlords need to be careful about getting into a situation where they could be accused of harassment.

Rights and method of entry

However, the landlord does have rights too, though it can be a bit confusing. It’s an irony that in English (and Welsh) tenancy laws as they stand, on the one hand landlords are under a statutory duty to maintain a rental property in a safe condition, with services in working order, on the other hand they have no automatic right of access.

Section 11 of the Landlord and Tenant Act 1985 does give landlords a right of access to carry out these obligations, yet the centuries old common law covenant of “quiet enjoyment” and the principle of “exclusive possession” give tenants the right to exclude everyone, including the landlord. These principles conflict but are implied in any tenancy, regardless of whether they are written into the agreement, but ultimately statutory rules trump common law and contracts.

Landlord and Tenant Act 1985 states that a landlord has an obligation to maintain and repair, to quote:

• The structure and exterior of the property (including drains, gutters and external pipes),

• The installations in the property for the supply of water, gas and electricity and for sanitation, and

• The installations in the property for space heating and heating water.

• The landlord, or someone instructed by the landlord, like a plumber or gas engineer, will need access to the property to carry out these repairs.

In addition to access for repairs, the landlord also has a right to view the condition of a property. The landlord, or someone acting as their agent, can gain access to the property at a “reasonable time of the day” but only after giving the tenant a reasonable amount of notice, best in writing.

Landlord-tenant relationships are often a finely balanced love-hate affair which can easily fall over into an acrimonious one. It sometimes takes careful handling and good people skills to keep things running smoothly, so that’s why some landlords prefer to bring in a neutral third party, a professional letting agent to keep the relationship independent and at arms length.

What to do if refused entry?

This situation is not uncommon but very frustrating, especially if you have arranged tradespeople to visit multiple times. The one thing you must not do is try to use any kind of force or coercion, or gain entry with a key, or you could be accused of harassment – a criminal offence.

As you are in breach of the statutory regulations with regard gas safety or electrical safety inspections you should inform your local authority of the situation: it is they who will prosecute, so put your information in writing so they now what’s happening.

You should continue to make every effort to gain access legally, to have the checks carried out, making sure you keep copies of all correspondence including letters, emails and a written diary of phone calls.

Eviction – Section 21 and Section 8 of the Housing Act 1988 as amended

You may decide that enough is enough if the tenant is refusing to cooperate and especially if they are in arrears with their rent, often the two problems go together. So you decide to serve a notice seeking possession

But you are then faced with another problem: you cannot serve a valid Section 21 notice without a current safety certificate in place. So Section 21 is out, and of course, as we know, Section 21 may be out permanently soon when the law is changed.

Section 21 is the no-fault eviction process which means that providing you have met all the pre-conditions (prescribed information), which include having current safety certificates, there is an automatic right to possession, a mandatory rule the judge must comply with, based on paper evidence – no need for a court hearing.

In fact there’s a whole host of prescribed information and conditions you must have complied with to enable you to serve a valid Section 21 notice:

– it’s less than 4 months since the tenancy started, or the fixed term has not ended, unless there’s a clause in the contract which allows you to do this

– the property is categorised as a house in multiple occupation (HMO) and does not have a HMO licence from the council

– the tenancy started after April 2007 and you have not put the tenants’ deposit in a deposit protection scheme

– the tenancy started after October 2015 and you have not used form 6a or a letter with all the same information on it

– the council has served an improvement notice on the property in the last 6 months

the council has served a notice in the last 6 months that says it will do emergency works on the property

– you have not repaid any unlawful fees or deposits that you charged the tenant – read the guidance for landlords on the Tenant Fees Act 2019

– You also cannot use a Section 21 notice if you have not given the tenants copies of:

– you have not provided the tenant with the property’s Energy Performance Certificate (EPC)

– you have not provided the tenant with the government’s ‘How to rent’ guide

– you have not provided the tenant with a current gas safety certificate for the property, if gas is installed

– You must give your tenants the gas safety certificate , the ‘How to rent’ guide and EPC before they moved in.

What about using Section 8

Section 8 on the other hand is an adversarial court hearing process where you must prove your right to possession based on (currently) around 17 grounds or circumstances justifying this. This is likely to be the only way of gaining possession in the future when the new rules are introduced, probably this year, though the Government has said the grounds are to be beefed up and extended, with a slicker and quicker process? We’ll believe that when we see it.

The point is, can you use Section 8 when your tenant is in arrears and there’s no Gas Safety Certificate or Electrical Installation Condition Reports (EICR) or any of the other acquirements such as the EPC in place, deposit protected, “How to Rent Guide” served etc? Fortunately the answer is, yes you can!

Using Section 8 for eviction

The Section 8 notice, using the rent arrears ground 8 (serious rent arrears), is not reliant on the prescribed information but there must be two months of rent arrears before notice can be served.

However, tenants have sometimes argued in court that their landlord has failed to provide a healthy and safe house, for which they put in a damages claim, or alternatively they may pay off all or some of the arrears at the hearing, and these bring the arrears below two months – result, no possession order and back to square one.

Grounds for possession using section 8 are listed in Schedule 2 of the Housing Act1988

To circumvent this, arrears claims usually cite also ground 10 (some rent arrears) and ground 11 (persistent delay in paying rent). These discretionary grounds, along with ground 12 (breach of tenancy), which in this case would be refusing entry for a valid reason, may just swing it?

These are mitigating circumstances which may be enough to persuade the judge to issue a possession order. But the onus is on you, the landlord, or your legal representative, to prove, if it can be proved, why your tenant is in breach.

The Government advises that:

Section 8 notices are only valid if they are completed and issued correctly. Landlords will also need to use the most up-to date form which can be found at GOV.UK, assured tenancy forms (form 3). A Section 8 eviction notice is really the final step in the process.

Before a Section 8 is issued, landlords should send tenants regular reminders of the reasons why they’re breaking tenancy rules. It’s recommended that these reminders be sent on a weekly basis. Landlords should also clearly set out what the breach of rules are. If the issue is rent, it’s a good idea for landlords to include the amount of rent owed.

Section 8 notices also need to be given to the tenant in a certain way – this may be specified in the tenancy agreement and can include: Handing the notice to the tenant. Delivering the notice by post. Putting the notice through the letterbox.

Documentary evidence

Courts and judges do not deal in hearsay. Verbal evidence, where it’s the landlord’s word against the tenant for example, is never enough. Conclusive evidence is needed and that means documentation, even if this is just contemporaneous notes made in your tenancy diary, recording what was said in phone calls and when it was said.

As stated above, courts like to see that landlords have made every effort to resolve disputes before a court hearing is necessary, and to make sure the tenant/s know exactly why they are being taken to court. So it’s a good idea to inform the tenant that the safety rules exist for a reason and that they are likely to be evicted if it does go to court, and that you have ample evidence to prove the breach.

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