You might never be able to use a Section 21

Published on Tue, 3rd Oct 2017 13:48

It is a legal requirement to have a valid Gas Safety Inspection Report (CP12) before a tenancy commences; it is then a requirement to ensure it is kept valid, i.e. renewed when necessary.

As a mechanism of policing that, the new Section 21 (form 6a) has to have a valid CP12 to be allowed at court.  It has never been clear when that CP12 has to have been served on the tenant in respect of the service of a S21, but has always been accepted that as long as it was served before the S21 it should be OK.

That opinion has now found to be wanting.  In a recent court case (Assured Property Services Limited v Ooo) the company had not served a CP12 on Ms Ooo at the commencement of the ASAT, but served one at the time of the S21.

Following convention, the original judge (District Judge Cohen) made a possession order under the accelerated procedure without a hearing. Ms Ooo subsequently made an application to set aside the order on the basis that no gas certificate had been provided at the outset of the tenancy (or subsequently). The landlord accepted that it had not supplied a gas certificate at the outset, but contested the claim that one was never served.

At appeal District Judge Lethem held that where a landlord had accepted that no gas safety certificate had been served prior to occupation of the premises by the tenant, it had contravened Gas Safety (Installation and Use) Regulations 1998 SI No 2451 reg 36(6). In view of Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 SI No 1646 reg 2(1)(b), that omission invalidated the s21 notice. The judge set aside the possession order and dismissed the claim for possession with an award of costs to the tenant.

In other words, unless this case is appealed and overturned it will never be possible to use a S21 (form 6a) unless the CP12 was correctly served at the outset.

Although not mentioned, it is likely that this would apply to an EPC (also legally required at the outset of the tenancy).  It is not sure if this would apply to the ‘How to Rent Guide’ as it wasn’t a legal requirement for the earlier AST’s.

It is still possible to use the old Section 21 on an AST commencing prior to Oct 2015 – but after this October 1st it will only be possible to use the new one.

So please ensure you serve all the correct documents at the commencement of the AST.  See our checklist for help.