RLA campaign to challenge gas safety notice ‘breach’

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Section 21:

The Residential Landlords Association (RLA) has launched a campaign
representing a landlord member after a recent court case decided that landlords
cannot regain possession of their property using section 21 if they failed to issue
a gas safety certificate to new tenants BEFORE they enter the tenancy.

The ruling in the Trecarrel House Limited v Rouncefield case,
which went to appeal, means that the landlord will only be in a position to
regain possession of their property should the tenant breach one of the 17
grounds for possession, under section 8 of schedule 2 of the 1988 Housing Act.

Using section 8 the onus is on the landlord to prove a
breach, and unless the case is clear cut, and the breach involves one of the
mandatory (as opposed to discretionary) grounds, then a decision can go either
way. The process is often slow, uncertain of outcome, and expensive.

The judge in the appeal case followed a previous similar
case when a gas safety certificate was only served two weeks after the tenant
moved in.

The RLA is now supporting the landlord, Trecarrell House
Limited, in another appeal, on the basis that so long as the gas safety
certificate is provided before the Section 21 notice is served, then it is
valid. It is arguing that this case could breach a landlord’s rights under
European Convention on Human Rights on the basis that it deprives them of their
possessions.

David Smith, Policy Director for the RLA, said:

“Protecting the rights of landlords to repossess properties
in legitimate circumstances is key to providing the confidence the sector needs
to offer longer tenancies.

“The landlord in this case was not seeking to shirk their
responsibilities and provided the certificates that were needed.

“We will fight to ensure that if nothing else, logic
prevails.�

Article 1 of the First
Protocol of the European Convention on Human Rights provides states: “Every
natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law. The preceding provisions shall not, however,
in any way impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or
penalties.�

Basis of the court
rulings:

Section 21A of the Housing Act 1988 (amended by the
Deregulation Act 2015) says that for tenancies entered into after 1st October
2015, a valid Section 21 Notice cannot be served if the landlord is in breach
of a “prescribed requirement�. Along with serving a current Gas Safety
Certificate, an EPC, the government’s “How to Rent� guide, and prescribed
information about a deposit, one of the prescribed requirements is that the
landlord must have complied with any statutory health and safety obligations.

To do this fully the Assured Shorthold Tenancy Notices and
Prescribed Requirements (England) Regulations 2015 (the “AST Regulations�) list
the requirement to provide a tenant with a gas safety certificate in compliance
with the Gas Safety (Installation and Use) Regulations 1998 (the “Gas Safety
Regulations�), crucially, BEFORE the tenancy starts.

Despite some experts arguing that this ruling was not the
intention of the Deregulation Act 2015, the MHCLG’s so far refusal to act means
that in practice it gives tenants security of tenure such that they will be
almost impossible to remove in the future without a serious breach of contract,
serious rent arrears for example.

MHCLG say they have updated guidance available to landlords
on the Gov.uk website, “to ensure landlords are certain of
their legal responsibilities.â€� 

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