Gas safety ruling all landlords need to know about
A landlord has had their Section 21 possession claim rejected – and been ordered to pay their tenants’ court costs – after failing to provide them with information about a newly installed boiler before serving notice.
The case of Van-Herpen v Green & Green rested on an argument as to whether a Building Regulations Compliance Certificate had to be issued for a newly installed boiler – and whether a Gas Safety Certificate should have been provided following subsequent visits to the property by a gas safety engineer.
Mrs Van-Herpen, the landlord, had attempted to serve notice on July 14, 2022 – 17 months ago – but the tenants disputed the validity of the Section 21 notice on the basis they hadn’t been given essential paperwork.
The background
While the claimant and defendants’ version of events differed on certain points, it was accepted the tenants moved into the property on September 5, 2018.
A qualified gas safety engineer confirmed in a written statement to the court that a new boiler was installed on September 6, 2018, and that – as a new installation – it did not need a Gas Safety Certificate, but instead only a Building Regulations Compliance Certificate.
He claimed in his statement: ‘This certificate is a Gas Safety Certificate in its own right and is issued by the Gas Safety Register’. Both parties agreed a copy was not given to the tenants, although the landlord said they would have provided one, if asked.
The same engineer also checked the boiler two months later, on November 14th, and although he said this was a ‘complete safety check’ he also said no Gas Safety Certificate was necessary, as the boiler was under a year old. Again, both parties agreed no Gas Safety Certificate was given to the tenants, but the landlord says this is because it was not required due to the boiler being under a year old.
The boiler was next checked on October 30, 2019, after an original inspection scheduled for August was delayed by the tenants – something they didn’t dispute. Following this inspection, on the same day, the tenants were given a Gas Safety Certificate by the engineer.
The issues in question
The case rested on two key questions:
• Had the claimant (landlord, Van-Herpen) complied with the Gas Safety Regulations, despite the fact they did not provide the defendants (tenants, Green & Green) with the Building Regulations Compliance Certificate (dated September 6, 2018)?
• Had the claimant complied with the Gas Safety Regulations, despite the fact they did not provide the defendants with a Gas Safety Certificate (following the inspection on November 14)?
The landlord argued there was no legal requirement to provide the Building Regulations Compliance Certificate, and that no Gas Safety Certificate was issued or requested in 14th of November 2018.
They argued that, having provided a Gas Safety Certificate to the defendants following the 2019 inspection, the Section 21 Notice was in all circumstances valid, and they were therefore entitled to possession.
The defendants argued the landlord was in breach of Gas Safety Regulations and therefore the notice was not valid.
The verdict
Following a trial at Hastings County Court on November 9, Deputy District Judge Duncan Wright ruled in favour of the tenants.
In his judgement he said he was ‘not persuaded by the claimant’s submission that such a check and consequential record is not required within 12 months of a boiler being installed’.
He also refused to accept the landlord’s suggestion that, had the defendants requested a copy of the Building Regulations Compliance Certificate, they would have been provided with it; saying the legislation clearly places the onus upon the landlord to provide the record to the defendants.
In his ruling he said the tenants: ‘should have been provided with a copy of the Gas Safety Certificates arising out of the inspections on September 6, 2018, and November 14, 2018, prior to service of the Section 21 Housing Act Notice. This did not occur.
“As a consequence, the purported Section 21 Housing Act Notice was defective, and as a consequence these proceedings must be dismissed.”
The then ordered the landlord to pay the tenants’ court costs.
What does the NRLA say?
NRLA policy director Chris Norris said: “While this case is a County Court case, and not binding on other courts, we are sharing this story to demonstrate to members that it’s better to provide as much information as possible to tenants especially when it comes to prescribed information like Gas Safety Certificates, EPCs or deposit information.
“When considering compliance with safety regulations, the consequences of getting it wrong can be both costly and potentially dangerous. Cliched as it sounds, it is definitely better to be safe than sorry.”
More information
The NRLA purchased property safety certification provider Safe2 last year, to help members meet required standards.Safe2 offers a single service to ensure gas, electrical safety and energy performance certificates are up to date. For more information about the Safe2 offer click here.
For more information on prescribed information, and ending a tenancy the right way, click to view the NRLA guide here.
The NRLA also runs a training course on Ending a Tenancy which outlines the correct process to follow when you need to legitimately regain possession.
Thanks to Noah Gifford of Pallant Chambers, who represented the defendants for providing a copy the redacted judgement.
