Landlords will be familiar with the requirements to provide certain prescribed information to their tenants before entering into an assured shorthold tenancy. However, a recent decision shows that if they get it wrong at the beginning, there may be no turning back.

The requirements

An  Energy Performance Certificate must to be given to the tenant ‘at the earliest opportunity’ as well as the ‘How to rent guide’ .

If the tenancy started after April 2007, a Landlord must place the tenant’s deposit in a deposit protection scheme, give the tenant such information relating to the scheme and confirm that the Landlord has complied its requirements.

If these documents are not provided, then the Landlord may not serve a ‘no-fault’ section 21 Notice requiring possession.

Also, a Landlord may not serve a s. 21 Notice where:

• the council has served an improvement notice on the property in the last 6 months;
• the council has served a notice in the last 6 months that says it will do emergency works on the property;
• the Landlord has not repaid any unlawful fees or deposits charged to the tenant; or
• before the s.21 notice was given, the tenant made a complaint in writing to the landlord regarding the condition of the property and at the time of the complaint, the landlord failed to provide a response to the complaint within 14 days beginning with the day on which the complaint was given or provided a response that was not an adequate response, or served a S21 notice following the complaint.

A Gas Safety Certificate (or record)  must be given to any new tenant before that tenant takes up occupation and the landlord must get a fresh certificate every 12 months and provide this to any existing tenant within 28 days of the date of the inspection.

Recent caselaw has examined issues surrounding failures to provide a fresh Gas Safety Certificate (or record) every 12 months and whether doing this late still prevents the Landlord form serving a s.21 Notice.

In Trecarrell House Ltd v Rouncefield [2020] HLR 39, the Court of Appeal concluded that that a breach of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998(3) (the requirement to provide tenant with a Gas Safety Certificate) can, in certain circumstances, be remedied by service of the Gas Safety record later.

However, in a recent case in the county court, Byrne v Harwood-Delgado, it found that failure to obtain a Gas Safety Certificate before the tenancy started could not be remedied by service of a Gas Safety Certificate produced after the tenancy commenced.

Therefore, this now gives some authority (albeit not currently binding) that if a landlord did not obtain a pre-tenancy gas safety record and give this to the tenant before they move in, they can never serve a s.21 notice to end the tenancy.

Landlords have known for some time of the importance of getting their ‘ducks in a row’ before the tenancy starts but, certainly in terms of the provision of gas safety records, they may have thought that a failure to do so could be remedied later on and before the need to serve a s.21 Notice.

However, on the basis of this recent decision, Landlords now need to be much more rigorous in their compliance with these pre-tenancy legal requirements if they want to be able to evict their tenants under the no-fault provisions later on.

If you are a landlord in need of legal assistance please contact Jonathan Tyler on 01732 446361 or email jonathan.tyler@wellerslawgroup.com