You might NEVER be able to use a Section 21

Published on Thu, 1st Mar 2018 15:47

The new Section 21 (form 6A) was published in the Deregulation Act 2015.

It was intended that the courts would be able to use this S21 to monitor some of the mandatory requirements, thus the court would check that the following had been served correctly:-

  • Gas safety certificate (CP12) – where required;

  • EPC – where required’

  • The ‘How to Rent’ booklet.  See the February news update email.

But as is often the case, the legislation has now caused problems.

The requirement for gas was in paragraphs 36 (6 & 7) of the Gas Safety (Installation and Use) Regulations 1998 where it states that the gas safety certificate must be served on an existing tenant within 28 days of the check being completed; but also states that the certificate must be served on ‘any new tenant …. before the tenant occupies those premises.

This came to light in a recent court case (Caridon property Ltd v Monty Shooltz) where His Honour Judge Luba QC ruled that by taking the requirements of the 2015 Act with the 1998 Act it was not technically possible for a S21 to ever be used where the gas safety certificate had not been served on a new tenant before the tenant occupies the premises.

Whilst the Judge had to allow the appeal by Shooltz to disallow the S21, he did question whether this was what was intended by Parliament.

This leaves a severe problem for anyone serving the gas safety on after the tenant moves in – which I would suggest would the majority of tenancies.

The Government are being lobbied to clarify this situation.

Note this only applies to any AST commencing on or after October 1st 2015

THE IMPORTANT THING IS TO SERVE THE GAS SAFETY BEFORE THE TENANT OCCUPIES A NEW TENANCY.