Obtaining possession of a tenancy under s21 and Gas Safety Certificates.

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The Court of Appeal has recently given leeway to landlords in relation to s21 notices and gas safety certificates. As we are sure you are aware, residential landlords must comply with the Gas Safety (Installation and Use) Regulations 1998, which require an annual gas safety inspection. This must be provided to the tenant within 28 days of inspection. A current certificate must be given to any tenant before occupation commences. 

Section 21 of the Housing Act 1988 is the no fault ground for possession by a landlord. The notice cannot be served if the landlord is in breach of a prescribed requirement – and it had been argued that a landlord could not seek to bring an assured shorthold tenany to an end if the gas safety certificate was not served on the tenant prior to occupation because this is a prescribed requirement.

In the case of Trecarrell House Ltd v Rouncefield, the landlord gave a copy of the gas certificate to the tenant after she had moved into the property. It was not given prior to her occupation. The Appeal Court held that this was not fatal to the landlord’s s21 notice. 

The Court decided that provided the landlord had given the tenant a copy of a gas safety certificate that was in force before the tenant occupied the property, then an s21 notice could be validly served.

Do remember though the requirement that, as a landlord, you also need to serve, within 28 days of carrying them out, any further certificate relating to a subsequent gas inspection, not just the first one in place at the time the tenancy started


If you have a legal issue concerning this or any other element of Landlord and Tenant Law, whether residential or commercial, why not contact one of Alexander JLO’s expert lawyers for a free, no obligation quotation and see what we can do for you.

18 thoughts on “Obtaining possession of a tenancy under s21 and Gas Safety Certificates.

  1. Peter Amiras says:

    Hi
    My agent Dexters seems that they did not include the gas certificate at time of the tenancy in 2019. I am trying to get my tenant out but their defence is that they did not get the gas certificate. What do I need to do?

    • Peter Johnson says:

      Thank you for your interest in our blog.

      In the Trecarrell House case the Court of Appeal ruled by a majority, in the landlord’s favour, that a failure by the landlord to provide the original Gas Safety Certificate is not fatal to a Section 21 Notice being served and subsequent possession proceedings being issued, provided that before the Section 21 Notice was served the Gas Safety Certificate was provided.

      So the brief answer to your question will depend on whether or not there was a Certificate in place at all and, if it was, whether the Certificate was provided to the tenant by your agent, or by you, before the s21 notice was served.

      If there was a certificate in place and which was served before the service of the section 21 notice, possession proceedings could be issued, provided that the remainder legislative requirements were adhered to, for example in relation to service of the How to Rent Booklet and Energy Performance Certificate protection of any deposit. In addition, it is important to ascertain the date the Section 21 Notice was served to ensure it is has not expired.

      Alternatively, in the event the above steps were not taken, then it is likely that the tenant’s position is correct and that you may have a claim against your agents in professional negligence.

      Obviously we would need to see all of the papers before we could fully advise and I’d be happy to look at the same should you wish to contact me at peter@london-law.co.uk

      Peter Johnson
      Senior Partner

  2. AJHome says:

    If a Section 21 is served and it winds up going to the eviction process, to court, will the court demand every CP12 since the tenancy started, or just proof one was served before the start, and a current one?

    Also, what if there is a gap between CP12s, if one expired and a new one was done a week or two late, within the tenancy?
    This is on a tenancy which has gone on 5 years…

    • Martha Holland says:

      Thank you for your interest in our blog Alison.

      When applying for possession following from a section 21 notice, you will be required to supply the court with copies of all gas safety certificates during the period of the tenancy, including the one which was active when the tenant moved in.

      Whilst when the laws were first introduced it was thought that failure to serve a gas safety certificate on time at any point during the tenancy would remove the landlord’s right to serve a valid section 21 notice, this position was rebutted by the Court of Appeal. Therefore, if the gas safety inspection has been conducted later than required, it will not impact your ability to gain possession via the section 21 notice route, providing that the gas safety certificates were eventually supplied to the tenant prior to service of the notice. However, it is important to keep in mind that there can be criminal sanctions (in addition to the general safety risks) for failing to comply with the gas safety regulations and therefore, full compliance should always be encouraged.

      Martha Holland
      Solicitor

  3. Mike says:

    Hi. In my case a certificate was issued at the start of the tenancy and a fresh one was in place when the Section 21 was issued. However a month into the three months notice the certificate expired and I neglected to get a new one done. Does this effect my ability to proceed with the Section 21 / and court proceedings?

    • Martha Holland says:

      Thank you for your interest in our blog Mike.

      It is important to note that case law provides a clear distinction between failing to obtain a gas safety certificate before the commencement of the tenancy agreement and failing to provide copies of an obtained certificate to the tenant. Whilst the former still appears to be a bar to the ability to obtain possession through the no-fault procedure, the latter can be rectified through late service, providing the certificate is served before the section 21 notice.
       
      However, the case law remains somewhat unclear as to the exact position surrounding delays in completing the annual gas safety inspections, particularly where there is no valid certificate at the time the possession application is made. In the event that the tenant has caused obstruction to the completion of the annual checks, then evidence of this should be kept to submit to the court. If, however, you are able to conduct the inspection, we would recommend conducting this and serving the certificate as soon as possible (and before applying for possession) to increase your likelihood of success in a possession claim.

  4. Mohammed Alibrahim says:

    Hi

    I hope your well , I took over property back in march 2020 but could not serve a gas certificate due to COVID restrictions and tenant not cooperating. The earliest I could do this was January 2023 I served tenant section 21 in may 2023 , will that invalidated my section 21 as it’s going through the courts.?

    • Martha Holland. Solicitor. says:

      Dear Mohammed.

      Thank you for your interest in our blog.

      If you served a valid gas safety before the tenancy commenced and then were late serving the renewal ones, provided the gas safety was served before the s.21 you should be ok. If you were delayed in obtaining the certificate then there may be a problem, but if you can prove that this was due to the restrictions and the tenant was obstructing this from being done, the courts shouldn’t obstruct you from gaining possession 

  5. AJ says:

    Hi,

    Thank you for this very helpful blog.

    In the circumstances where no valid gas safety certificate was presented before commencement of the tenancy which has now become periodic in nature, but the landlord has subsequently got a gas safety certificate, are they in a position to serve a valid S21?

    Thank you.

    • Martha Holland says:

      Dear AJ

      Thank you for your interest in our blog and we are pleased you found it helpful.
       
      If the landlord did not obtain a gas safety certificate before commencement of the tenancy, then the current case law suggests it may be an absolute bar to validly serving a section 21 notice. If the landlord did have a valid certificate in place for the property and simply failed to furnish the tenant with a copy, then they could serve the certificate on the tenant late to remedy the breach and in such case, this should not invalidate a section 21 notice.

      Martha Holland
      Solicitor and Advocate

  6. Glynn Pearson says:

    What a useful blog glad I found it, we took over a property in auction current tenant has been in over 16 years but the flat is in need of urgent repairs to the extreme of full renovation re wire everything due to tenant neglect, we don’t have elec certs and no electrician will issue one due to state of property plus it won’t pass we want to evict tenant but cannot get certs

  7. MM says:

    Thank you for the blog , really helpful .
    I have a question in relation
    Section 21 notice was served with all due gas certificates provided at the start and during tenancy but the latest gas certificate annual inspection date falls around 2 weeks before end date of section 21 notice period and it could not be arranged so so far due to Tenant’s availability ?
    However the latest gas certificate was done with in 2 months of the previous gas certificate and I learnt that the regulation treat this as if this was done on last date of previous gas cert .if this is correct then the current gas certificate would be valid for the whole of section 21 notice period ?

    • Guy Wilton says:

      Thank you for your interest in our blog.

      Generally speaking what happens before the s21 notice is served is important. Provided all was good before service then it won’t invalidate the notice.

      Regarding obtaining possession, if the court raises the date as an issue because the claim is made after expiry of the certificate, as long as you can show that you have been attempting to get the certificate renewed but this has been blocked by the tenant to date, you should be fine (but obviously all scenarios are different).

      Guy Wilton

  8. mo says:

    Hello,

    my tenant moved in on April 2019. I issued them with a gas safety certificate dated February 2017 as I did not have one for 2019. Between 2019 to 2022, I did not issue a gas safety certificate ans only issued one in 2023 which is the current certificate. Can I still use the secrion 21 route to evict my tenant?

    • Martha Holland says:

      Dear Mo

      Thank you for your interest in our blog.

      If at the outset of the tenancy you didn’t obtain and provide a valid gas safety certificate, then this is likely to be a bar to obtaining possession via the section 21 notice procedure

      Martha Holland
      Solicitor

    • Guy Wilton says:

      Thank you for your interest in our blog.

      There are three options open to you.

      The easiest way to get a duplicate Gas Safety Certificate is to contact the engineers you hired to conduct the last gas safety check. You must have saved his contact number at the time of the inspection of your property. Additionally, you should also remember the date around which the engineer did the inspection.

      Contact him and provide him with the details of your property and the date of the inspection he conducted. He should be able to retrieve the details from his records, and he can arrange a duplicate copy of the gas safety certificate for your property.

      Option 2

      If the engineer is unreachable, the second option is to contact any other local gas-safe engineer. He should be able to help you get the duplicate copy of the Gas Safe Certificate. However, he will need the following information:
      Date of Inspection of your property for gas safety check
      The exact location and address of your property
      Any other relevant information that may help to identify the property
      With the above information, he should be able to get a duplicate copy of your gas safety certificate.

      Option 3

      The last resort is to visit the official website of the Gas Safe Register. But for this, you must have the unique ID number of your original gas safe certificate. You need to enter the postcode and address of your property and the 10-digit ID number of your lost gas safe certificate. If the provided information is correct, you can download the duplicate copy of your lost certificate.

      Guy Wilton

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