Even though evicting a residential tenant is far from a landlord’s mind when the tenant signs an Assured Shorthold Tenancy Agreement, the landlord should be well aware of its obligations which will potentially affect a future eviction.
Since 1 October 2015, at the beginning of a residential tenancy, a landlord must provide the tenant with specific documentation, namely:-
In addition, landlords must also secure their tenant’s deposit in a government approved tenancy deposit protection scheme within 30 days of receipt and provide to the tenant the prescribed information regarding the deposit.
Section 21 Notice
Under section 21 of the Housing Act 1988, landlords are entitled to seek possession of their property once the fixed term tenancy has ended, or during a tenancy with no fixed end date (a periodic tenancy) by giving 2 months’ notice in writing to the tenant. However, a landlord cannot validly serve a section 21 notice if it has not provided the above documentation to the tenant. Historically, it was accepted that the provisions under the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (‘the AST Regulations’) meant that the documentation could be served after the tenancy began but before a section 21 notice was served.
However, this was looked at more closely in Caridon Property Ltd v Monty Shooltz , (Central London County Court – 02.02.2018) where the tenant had been given a gas safety certificate some 11 months after the start of the tenancy and a section 21 notice was served shortly afterwards. The Gas Safety (Installation and Use) Regulations 1998 (‘the Gas Safety Regulations’) state that a copy of the latest gas safety certificate must be provided to any new tenant within 28 days. The tenant, Mr Shooltz, argued that his landlord’s failure to provide him with a gas safety certificate at the start of the tenancy as required meant that the section 21 notice served on him was invalid.
When referring to the 28 day period in the Gas Safety Regulations, HHJ Luba explained, “In my judgement, what those words mean is that where a landlord is seeking to say he or she has complied with the variant of paragraph 6 or 7 relating to an existing tenant then the 28-day period for compliance with the requirement to give notice to an existing tenant does not apply.”
In light of this, HHJ Luba found that the landlord was required to have served the gas safety certificate when the tenant moved in and his failure to do so meant that the landlord could not serve a valid section 21 notice.
In summary, the Gas Safety Regulations had to have been complied with at the commencement of any tenancy. Therefore, the impact is that a landlord is now unable to serve a section 21 notice when it has not provided the tenant with the required initial information, including a gas safety certificate, prior to the tenant moving in. Where current tenants have not been provided with a copy of the gas safety certificate, it would appear that a landlord should end the current tenancy, serve the tenant with a gas safety certificate and the relevant required initial documentation if necessary, and commence a new tenancy. Of course, this would mean that the new tenancy would be subject to a new fixed term during which the landlord would not be entitled to seek possession of the property.
Where a tenant has been provided with a gas safety certificate, a landlord may need to prove this has happened at a later date. As a result, it may be prudent to request the tenant sign a letter of acknowledgement, or similar, at the time it is provided.
Although this current decision is not binding (except in London) as it is only a County Court appeal, future appeals to a higher court may take it into consideration. In the meantime, it is imperative landlords are fully aware of their obligations and serve all the required information set out above before the start of any new tenancy. If a landlord is unsure of its obligations, it should seek independent legal advice.