Background – Van-Herpen v Green and Green (2023)
This case concerned a claim by a landlord for possession on the basis of an expired Section 21 notice.
The tenants took occupation of the Property in 2018 under an Assured Shorthold Tenancy (“AST”). It is unknown whether there was a valid Gas Safety Certificate (“GSC”) at the time the tenants took occupation. The day after the tenants took occupation, a new boiler was installed. The gas engineer, at the time the boiler was installed, created a Building Regulations Compliance Certificate (“BRCC”). He claimed this was a GSC in its own right as it is issued by the Gas Safety Register, however, the BRCC was not served on the tenants – now, or prior to service of the Section 21 notice.
Two months later, the gas engineer returned to look at the boiler after the tenants complained of issues with the boiler. The gas engineer performed a ‘complete safety check’ but did not create a GSC, as the boiler was under a year old and the Gas Safety (Installations and Use) Regulations 1998 require only for a GSC to be commissioned within 12 months of installation.
The issues in dispute
The issues the County Court were required to consider were:-
- Whether the landlord had complied with Gas Safety Regulations due to the failure to serve the BRCC to the tenants.
- Whether the landlord had complied with Gas Safety Regulations due to the failure to provide the tenants with a GSC from the inspection two months after the boiler was installed.
The landlord argued that there was no legal requirement to provide the BRCC and a GSC had not been commissioned (as the boiler was under 12 months old) or requested by the tenants.
The tenants argued that the landlord was in breach of Gas Safety Regulations and the Section 21 notice was therefore invalid.
Decision
The Judge decided that as the boiler had been ‘checked’ under the purposes of the Gas Safety (Installations and Use) Regulations 1998, a record was required to be made of such checks. The tenants should have been provided with such GSCs (from when the boiler was installed and when the gas engineer returned to the Property 2 months after installation) prior to service of the Section 21 notice.
The Judge was not persuaded that a check is not required until the appliance is 12 months old – this is merely a maximum time frame for which the first check should take place. This means that a GSC should be commissioned and served for any checks undertaken within the first 12 months of instalment.
The Judge also confirmed that the legislation clearly places the responsibility upon the landlord to provide the tenants with the relevant records; it is not the responsibility of the tenants to request such records.
Consequently, the Section 21 notice was deemed invalid, the claim was dismissed and the landlord was ordered to pay the tenants court costs.
Comments
As this is a County Court decision, the judgment is not binding, however it is of persuasive value. It shows the continuing attitude of Judges at County Court level to push for all documents to be provided to a tenant, and regular gas safety checks. We will endeavour to update you as to the outcome if the landlord appeals the decision, as it may become binding at that point.
The lesson to learn from this case, is that the safest route of action for landlords who install a new gas appliance is to create a BRCC and GSC upon installation and to ensure that a GSC is created if any checks of this appliance are made at any time, and to serve all records to all tenants before service of a Section 21 notice.
If you have any queries relating to residential possession, please contact our Property Litigation Team at possession@ellisonssolicitors.com
Please note that the above does not constitute legal advice.
