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How a gas safety checks ruling will make it more difficult to evict tenants
A gas safety certificate could now be a deciding factor in whether landlords can evict problem tenants, writes Sian Evans
The matter of when to issue a social housing tenant with a gas safety certificate for their property has taken on new significance following a county court ruling.
The decision, in February, in the case of Caridon Property Ltd v Monty Shooltz will make the process of evicting problem tenants much trickier, by invalidating what has become common practice for many in the sector.
Typically, social tenants are placed on assured shorthold tenancies (ASTs) – commonly known as starter tenancies – in their first year of occupancy.
“Assured shorthold tenancies provide useful flexibility for landlords to tackle issues such as anti-social behaviour and other disruptive tenancy breaches.”
For landlords, it is easier to evict a tenant on an AST than those with longer term tenancies.
ASTs therefore provide useful flexibility for landlords to tackle issues such as anti-social behaviour and other disruptive tenancy breaches, which commonly present themselves early on in a relationship with a new resident.
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After the first year, tenants will typically move on to an assured tenancy, acquiring greater rights in the process which make eviction procedures significantly more complicated.
Under an AST, landlords must fulfil a range of requirements before they can commence an eviction – a process known as issuing ‘section 21 notice’.
One of these requirements is to provide the tenant with a gas safety certificate, if their property is supplied with gas.
“The ruling represents a different and very literal interpretation of the law than has gone before and it is a big problem for landlords”
Up until now many in the sector thought that, providing the certificate was issued to the tenant before the section 21 notice was issued, the landlord could proceed with the eviction.
However, in the case of Caridon Property Ltd v Monty Shooltz the judge ruled that the landlord’s section 21 notice was invalid, because it had not provided the tenant with the gas safety certificate before they moved into the property.
This represents a different and very literal interpretation of the law than has gone before and it is a big problem for landlords, who haven’t had to consider this before.
As a result, although properties may have the appropriate safety checks and certificates in place, not all landlords will have provided tenants with the certificate before they moved in, if at all. Even if the landlord did provide the tenant with a gas safety certificate before they moved in, it could be very hard to prove. Some landlords may not have a paper trail as proof that the certificate was provided before the tenancy began.
There is a very real risk that this will be used as a stalling tactic by tenants who are disputing an eviction. If they can successfully dispute the section 21 notice on this basis, they stand a greater chance of remaining in place and potentially accruing greater tenancy rights in the process.
“There is a very real risk that this will be used as a stalling tactic by tenants who are disputing an eviction”
Solicitors acting for tenants will be aware of this ruling and are likely to make this a factor in disputes.
However as it is a county court judgement these are not generally binding.
Despite that, it is expected to be influential with other county courts, not least because the judgment was handed down by a HHJ Jan Luba QC, a prominent and respected housing barrister prior to becoming a judge.
This decision may well be tested in the high court but in the meantime, it represents a financial risk for landlords, who face the potential for lengthy and costly legal battles to remove disruptive tenants.
In response, they must ensure the relevant certificates are issued to tenants before they move into the property and that this is signed for and documented, should it need to be proved in a dispute.
Sian Evans, head of property litigation and sector lead for housing, Weightmans
