Do I need a Pre-occupation Gas Safety record before I serve my tenant with a Section 21 Notice?

Issues with pre-occupation gas safety records may no longer be an absolute bar to serving a valid section 21 notice.

What are the requirements for serving a section 21 notice?

It was previously established that in order for a section 21 notice to be valid, the tenant must first be served with (amongst other documents) a valid current gas safety record (GSR)and a GSR that was valid on the date when the tenant first moved into the property (a pre-occupation GSR)

What if I do not have a pre-occupation GSR? Can I still serve a valid section 21 notice?

Previously, it was widely understood that not having a pre-occupation GSR meant a Landlord could never serve a valid section 21 notice, which put many Landlords in a very difficult position. This would also be the case if a pre-occupation GSR was produced but failed to contain all of the required details – often gas engineers would neglect to fill in the details of the Landlord or the property address, which causes issues for many Landlords.

What happened in the case of Cassell & Cassell -v- Sidhu & Sidhu?

A Landlord’s claim for a possession order following a section 21 no fault eviction notice was successful at first instance. The Tenant’s appealed, asserting that the Landlord was barred from using the section 21 possession route due to the fact that they failed to supply a compliant pre-occupation GSR.

The question was whether the serving of later compliant GSRs could remedy this issue.

Why was it appealed?

The main issue on appeal was whether the fact the issue with the first GSR could be remedied by the later two GSRs.

What was the outcome of the appeal?

It was ruled that the issue with the first GSR was in fact remedied by the later two GSRs. It was argued that it was never parliaments intention for a procedural error with the first GSR to cause an absolute ban on serving a section 21 notice – especially when you consider that the Gas Regulations only require Landlords to keep a GSR until two further checks have taken place.

What does this mean for Landlord now?

If you serve a section 21 notice in the first year of a new tenancy, the Landlord must still have evidence of a valid pre-occupation GSR and, if 12 months have passed since the date of the pre-occupation GSR, Landlords must also have evidence of a valid current GSR

What does this mean for Landlord now?

If a Section 21 notice is served for a longer lasting tenancy, which has had two or more GSRs undertaken since the tenant moved in, the Landlord only needs to supply the two most recent GSRs.

To illustrate, if a tenant moved in on 2 January 2020 and GSRs were produced on 1 January 2020, 1 January 2021 and 1 January 2022, a Landlord would only need to evidence of the 2021 and 2022 GSRs. Any defects with the 2020 GSR can be remedied so long as the 2021 and 2022 GSRs are fully legally compliant and valid (and have been served on the tenant before the section 21 no fault eviction notice was served.

Defects with the pre-occupation GSR only matter if the Section 21 is being served before two further gas safety checks have taken place.

That sounds great – is it all good news?

Unfortunately, not. The court was clear that this is not a free pass for Landlords who did not have any pre-occupation GSR carried out.

Remember, in this case, there was a pre-occupation GSR, there was just issues with how the pre-occupation GSR was completed. The Judge was clear to differentiate the two different circumstances.

If no pre-occupation GSR was undertaken whatsoever, this may still be fatal to a section 21 no fault eviction claim, however this case did not definitively decide this point, and so caution should be taken in these circumstances.

As well as this, the ruling on this case will likely advise how Judges approach these circumstances, but as it is a county court judgement, it is not binding. It must be stressed that the court could come to a different conclusion in other cases. It does, however, offer a promising lifeline for Landlords who are otherwise stuck and unable to evict their tenants.

What is the Renters Rights Bill and how will the Renters Rights Bill Affect me?

The Renters Rights Bill seeks to abolish section 21 no fault eviction claims entirely and will change the process for evictions considerably. This bill has not yet come into power, but it is imminent. Landlords who want to rely on the Section 21 ‘no fault’ route will need to act quickly, before this is no longer an option.

If you are a Landlord or Agent and you would like to understand what the change in legislation would mean for you, contact our Jordan Johnson, who is a solicitor who specialises in property disputes and evictions.

Jordan.johnson@fbarnes.co.uk

01708 745183