Court rules Section 21 invalid without Gas Safety Certificate

Underscoring the obligation for letting agents or landlords provide a record to tenants immediately after any gas safety check, the ruling highlights it’s not just in cases of new gas appliance installation or within the initial twelve months of a tenancy. Failing to do this could have serious consequences for regaining possession of the property.

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Implications for agents

The case at Hastings County Court in December 2023 specifically addressed the requirements that arise when a new gas device, such as a boiler, is installed after a tenancy has started. It could set a precedent that even if a boiler is brand new, agents or landlords must promptly supply tenants with the relevant gas safety documentation.

The consequences of this decision could be significant, particularly if a landlord installs a new boiler shortly before leasing the property when the absence of a Gas Safety Certificate might prevent the use of a Section 21 notice for eviction.

It's worth noting that this County Court decision is a first-instance ruling and, while not legally binding on other courts, gives an insight into the current interpretation of the law on this matter.

Background to the decision

A new boiler was installed the day after the tenants moved in. The gas safety engineer conducted the necessary checks for commissioning the boiler but did not issue a Gas Safety Certificate (GSC). Instead, they provided a Building Regulations Compliance Certificate (BRCC), which was never given to the tenants.

The engineer also carried out a follow-up visit due to boiler issues and conducted a thorough safety check, but again no GSC was issued because the boiler was less than a year old.

When the landlord served a Section 21 notice for possession, the tenants argued that the notice was invalid because they had not been given copies of either the BRCC or the GSC for the checks performed.

Court ruling

The Deputy District Judge determined that the checks carried out by the engineer at the time of installation and during the subsequent visit qualified as "relevant checks" under regulation 26(9) of the Gas Safety (Installation and Use) Regulations 1998 and therefore, a record of these checks should have been created and promptly provided to the tenants as required by regulations 36(3) and 36(6)(c).

The Court's stance was that the requirement for a safety check within 12 months of installation did not exempt the agent or landlord from providing a record when checks were conducted earlier.

The failure to provide the BRCC or a GSC from the November inspection rendered the Section 21 notice invalid.

Resources for members 
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01 Mar 2018
Fact sheet: Landlords’ Legal Responsibilities for Gas Safety (England)
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26 Mar 2018
Fact sheet: Landlords’ Legal Responsibilities for Gas Safety (Scotland)
FS Gas hob.jpg
26 Mar 2018
Fact sheet: Landlords’ Legal Responsibilities for Gas Safety (Wales)