Landlord and Tenant: Gas Safety Certificates, Section 21 Notices and Byrne v Harwood Delgado
Many landlords rely on Section 21 notices to evict tenants but come across issues when they find there is no valid gas safety certificate in place. A landlord must comply with various legislation to serve a valid Section 21 eviction notice and make a successful application for possession. A county appeal (Byrne v Harwood Delgado) has confirmed that no gas safety certificate at the outset of the tenancy (to show the property was gas safe when the tenant moved in) unfortunately means there can be no section 21 no-fault eviction. The case is of crucial importance for landlords and tenants.
This important case is Byrne v Harwood Delgado (2) and was heard in Luton County Court on the 26th of May 2022.
The county court judge, Her Honour Judge Bloom (HHJ Bloom), said:
“The issue on this appeal was whether the failure to obtain a gas safety record (GSR) before the tenant took up occupation was fatal to the use of section 21 of the Housing Act 1988 (HA 1988). In other words, was the landlord, Mr Byrne, prevented from using the “no-fault” procedure to end the AST?
“The background to this case is that Mr Delgado took up occupation ..pursuant to an AST on 23rd August 2019. The AST was dated 19th August 2019. It is accepted that when Mr Delgado signed the paperwork prior to commencement of the tenancy he signed a checklist which included that he had a GSR. There is a factual dispute as to whether in fact this was served on him and no copy of it has been produced by either side. This factual issue was not resolved before the DDJ as the case proceeded on the basis that Mr Byrne was entitled to possession, in any event, as he had served a GSR in November 2019 dated 16th September 2019 i.e. after Mr Delgado moved into the premises….”
In reaching her decision in Byrne v Harwood Delgado HHJ Bloom commented on the current law:
“The legal framework is complex and it is clear that some of the legislative provisions are not as clearly written as they might be. There is the HA 1988 and the regulations made thereunder to consider. But, in addition, I have to also consider the Gas Safety (Installation and Use) Regulations 1998 and how they interplay with the HA 1988 and the regulations made thereunder.”
Following a detailed analysis of the legislation and previous higher court decisions, HHJ Bloom allowed the tenants to appeal:
“….the appeal is allowed. The decision of DDJ Wright will be set aside and the matter remitted to be heard by a different DJ or DDJ on the factual issue as to whether in fact there was a GSR in place which had been provided prior to the Section 21 notice being served.”
Consequences for landlords if the Byrne v Harwood Delgado decision is followed by other courts:
A landlord who did not obtain a gas safety certificate prior to the start of an AST (assured shorthold tenancy agreement) is barred from using the section 21 procedure to recover possession. The landlord in this situation can now only evict their tenants using section 8 of the Housing Act with reliance on at least one of the grounds for possession found in Schedule 2 of the Housing Act. The only exception would be for a landlord who had an AST which became a statutory periodic tenancy prior to 1 October 2015. This exception is based on the Court of Appeal decision in Minister v Hathway. My view is the landlord in this situation could still use section 21.
The decision in Byrne v Harwood Delgado effectively changes an Assured Shorthold giving the tenant greater security from eviction. HHJ Bloom appears to acknowledge this when she says:
“I agree with Ms Bullen-Manson that the failure to obtain a GSR prior to occupation turns the tenancy into something that the parties did not envisage but the remedy is to comply with Regulation 2(2) and obtain the relevant record before the tenant moves in.”
If we follow the decision in Byrne v Harwood Delgado, a gas safety certificate is now a valuable document that can affect the landlord’s ability to gain possession. There is no central record for a GSC. What if the GSC is lost? Many landlords may have given the GSC to the tenant and not kept a copy. The landlord will presumably have to try and locate the gas engineer and hope a copy was retained. Alternatively, obtain evidence (under a civil burden of proof) to establish that a gas safety certificate was in existence before the AST was signed and the tenant took possession of a gas-safe property.
The decision may cause practical problems. For example, many landlords inherit properties from loved ones who have sadly passed away. If the deceased landlord did not have the tenancy documents the executors or beneficiaries are unlikely to be able to give direct evidence as to what did or did not happen. Hopefully, an agent may have been involved and will be able to supply the documents.
What about a landlord who buys a property with a tenant in situ? Presumably, he will be looking at the documents given by the seller’s landlord and if the GSC at the start of the tenancy is missing the advice given by his solicitor dealing with the purchase.
HHJ Bloom commented on the complexity of the regulations and the fact the landlord who fails to comply will in any event face a criminal sanction. Landlords may feel this is a case where the landlord should only face a criminal sanction for failure to have a gas safety certificate and is clear from the legislation rather than a civil sanction based on legislation which in the HJ Bloom’s own words is: “Complex.. and not as clearly written as they might be.”
A landlord can of course fail in an application for possession under section 21 for various other reasons or breaches of the legislation. What makes the decision in Byrne v Harwood Delgado so important is that if an application fails for breach of the legislation the landlord can correct themselves, serve a fresh section 21 notice and make another application for possession. Whilst this is costly, and causes delay the landlord can still use section 21. The decision in Byrne v Harwood Delgado makes clear failure to obtain an in-date GSC at the outset of the tenancy which started after 2015 cannot be corrected so the landlord cannot ever use section 21 and will only be able to serve notice and apply for possession under section 8 of the housing act with reliance on at least one of the grounds in schedule 2.
Changes proposed by the Renters Reform Bill?
Finally, one wonders whether the Renters Reform Bill, which removes the section 21 procedure and strengthens the grounds for a landlord to obtain possession under section 8, will act as a lifeline for a defaulting landlord in this situation. This subject would be worthy of an article on its own.
What we know at present is the Renters (Reform) Bill which was announced to Parliament on 17 May 2023 will have its implementation delayed. The government announced on the 20th of October 2023 that it would delay implementation for various reasons; mainly to allow improvements to the court system amongst others. None of the proposed improvements /changes look like they are going to happen quickly which means section 21 is clearly going to be with us for some time. Therefore the importance of having your house in order as a landlord if you wish to use the possession process in section 21 of the Housing Act cannot be overstated.
If you are a residential landlord and need advice on any of the above, including Byrne v Harwood Delgado and the Renters Reform Bill, then please contact me directly by emailing neale.crump@GAsolicitors.com or calling 01752 203500.
You can read a recent article about the Renters Reform Bill here.
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