With the passage of the Deregulation Act 2015, landlords who use Assured Short hold Tenancy agreements are now subject to a slew of new regulations. Several of these, referred to as "Prescribed Requirements," is based on the "Assured Short hold Tenancy and Prescribed Requirements (England) Regulations 2015" ("the Regulations") and concern the property's condition, the health and safety of its residents, and its energy performance. New "Prescribed Requirements" mandate that landlords give tenants documentation like an up-to-date copy of the government's "How to Rent" guide, an Energy Performance Certificate, and a Gas Safety Certificate.
Despite some accidental statutory overlap, tenancies granted on or after October 1, 2015, are the only ones required to comply with the Prescribed Requirements. The new section 21A of the Housing Act of 1988 was also a result of the Deregulation Act. When a landlord in England violates a Prescribed Requirement, he cannot serve an s.21 notice to recover the property at the end of the stipulated term of the tenancy agreement. This indicates that if any of the documents mentioned above had yet to be served, the Landlord could recover possession of the property by serving an s.21 notice.
The Prescribed Requirement for a Gas Safety Certificate is to submit a copy within 28 days of the most recent gas safety inspection for ongoing leases or before the tenant occupies for new leases. Suppose a Gas Safety Certificate was served outside the requisite 28 periods. In that case, the Landlord might still be able to serve a good s.21 notice if the Certificate is provided at any time after that under the saving clause outlined in Regulation 2(2) of the Regulations (subject to compliance with all other statutory requirements). Landlords and attorneys commonly assumed that the same safety net would apply to newly created tenancy contracts (e.g., those entered on or after October 1, 2022).
This assumption, however, has been disproved by a recent court ruling. According to HHJ Luba QC (highly regarded in the field of Housing Law), failure to serve a Landlord Gas Safety Certificate before the tenant's occupation of the property was a fatal flaw that could not be remedied. In such cases, an s.21 notice could never be served for tenancies that began on or after October 2022.
The apparent repercussions of such a choice are that a landlord can find themselves in a position where they can never regain possession of their property, for a theoretically unlimited period, due to a single administrative failure that occurred before the commencement of the tenancy unless the tenant's conduct gave rise to one of the statutory grounds of eviction (such as rent arrears or other breaches of the tenancy).
It's essential to remember that this was just an appeal to a Circuit Judge in the County Court and could be reversed by a higher court. For this reason, the decision's longevity as "good law" seems doubtful. While the judgment has yet to be overturned as of this writing, it should warn landlords to be mindful of their legal responsibilities and to verify that a Landlord Gas Safety Certificate is met at the start of any rental.
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