Gas safety certificates after landlord installs new boiler

Action point

If a landlord installs a new boiler at a property after the tenancy start date, it must serve on the tenant either a new gas safety certificate or the Buildings Regulations Compliance Certificate, in advance of serving a section 21 notice.

The context

The accelerated possession process enables the landlord to end an assured shorthold tenancy on a no-fault basis, with the first step to possession being service of a section 21 notice¹. There are prescribed legal requirements² for a section 21 notice to be valid. These include the requirement to provide the tenant with a gas safety certificate within 28 days of the date of any check and to provide the tenant with a copy of the last record³.

The court has previously decided that:

• late service of an existing gas safety certificate may be remedied by its service on the tenant before service of a section 21 notice⁴; and
• failure to have a gas safety certificate in place before the tenant’s occupation of the property is not capable of being remedied and therefore any section 21 notice would be invalid⁵.

The recent development with Van-Herpen v Green and Green

This case, as has been reported in Nearly Legal⁶, was decided at the County Court in Hastings on 4 December 2023. The court made a finding that where a new boiler had been installed at the property after the tenancy start date , in the context of complying with the legal requirements for valid service of a section 21 notice:

• a new gas safety certificate must be produced and provided to the tenant as soon as the check of the newly installed boiler is completed; and
• a Buildings Regulations Compliance Certificate is a ‘relevant record’, and therefore can serve the same purpose as a gas safety certificate⁷.

Note this was a County Court decision and therefore whilst not binding, it is persuasive, and is likely to be quoted in other cases and courts. Please therefore see the action point above.

For more information and support navigating this area, please contact Deborah Frost.

Footnotes

<sub>1. Section 21 Housing Act 1988
2. Section 21A Housing Act 1988
3. Section 2(1)(b) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 and Paragraph (6) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998
4. Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760
5. Dean Byrne v Thomas John Harwood-Delgado – County Court at Luton, 26 May 2022, Case No: H00HF202
6. https://nearlylegal.co.uk/2023/12/section-21-and-gas-safety-post-start-of-tenancy-installations/
7. Regulations 26 (9) and 36 (6) of the Gas Safety (Installation and Use) Regulations 1998 considered.</sub>

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