Serving Section 21 - missing Gas Safety Certificate

Bodkin64

Hi,

I wonder if anyone here has sufficient legal knowledge to help with our problem? Brief background first, we need to sell a property which we are currently letting out through a letting agent. The tenants have been there since 2015 and had been on a rolling month-by-month tenancy.  We served the tenants 6 months notice, which expired last month. The tenants have refused to leave as they want to get on the council list. Our solicitor has been in the process of serving a Section 21 notice, and has just contacted us to advise that they do not have a copy of the Gas Safety Certificate that had been issued prior to the tenants’ occupation, only more recent ones. We never received a copy (just an invoice from the engineer), the tenants have not kept it, and the letting agent destroyed it as it was over 2 years old owing to GDPR. It appears that without this certificate it is unlikely that a Section 21 claim will succeed.

We clearly need to speak to the solicitor about this however, in the event that a Section 21 claim can’t be made (it sounds as if the claim can still be made however the court may well reject it) what option do we have to evict the tenants? We understand why they refuse to leave, much as it’s causing us a lot of aggravation, and I don’t believe they have done anything which would warrant serving a Section 8, e.g. they have always paid rent promptly, etc, and have been good tenants until now.

Any help much appreciated, in plain English if possible since I’m no legal expert!

greatcrested

The rules relating to validity of S21 Notices and gas safety reports were partially clarified this year by case law.

1) if there was no gas safety report at the time the tenancy started,it is likely any S21 wil be invalid (the case did not specifically clarify this scenario).

2) if there was a GSR at the start, but due to an administrative error or similar, it was not provided to the tenants within the required 30 days, and assuming it is provided to the tenants before the S21 is served, and assuming there is a current valid GSR also provided to the tenants when the S21 is served, the S21 will be valid.

So your issue now is twofold:

a) one of proof. Can you prove that you did have a GSR when the tenancy started?

b) if you did not provide it to the tenants prior to serving the S21, the S21 will be invalid and will need to be re-issued after providing the GSR to the tenants.

Bodkin64

greatcrested said:

The rules relating to validity of S21 Notices and gas safety reports were clarified this year by case law.

1) if there was no gas safety report at the time the tenancy started,it is likely any S21 wil be invalid (the case did not specifically clarify this scenario).

2) if there was a GSR at the start, but due to an administrative error or similar, it was not provided to the tenants within the required 30 days, and assuming a valid GSR has been provided to the tenants when the S21 is served, the S21 will be valid.

So your issue now is one of proof. Can you prove that you did have a GSR when the tenancy started?

Re 1, yes I had read this and realise we are in difficulty given that although we definitely did have one at the time we just don’t have it 5 years on. I don’t think we can provide cast iron proof we had it, the best evidence we have is the engineer’s invoice. What I don’t understand is where we go assuming the S21 route doesn’t work.

anselld

What happened to the notice served six months ago?  Why is the solicitor issuing it again?

You may be able to obtain a copy from the gas man who issued it.

You may still issue s21 and hope that the lack of initial LGSR is not challenged, or if it is challenged that the Court accepts the invoice as evidence that it was done.

You are still able to sell with tenants in situ albeit to an investment buyer.

Slithery

Malcyb said:

...and the letting agent destroyed it as it was over 2 years old owing to GDPR.

This is the time to seriously start questioning your choice of incompetent agent. That's a terrible lack of understanding of GDPR and tenancy law on their end.

Malcyb said:

What I don’t understand is where we go assuming the S21 route doesn’t work.

Nowhere.

You won't be able to evict unless the tenant subsequently runs up arrears or you have another reason under S8.

https://www.compactlaw.co.uk/free-legal-information/public-housing/grounds-for-possession-assured.html

greatcrested

Have you asked GasSafe? I know they keep records of Installation Reports/Building Regulations certificates, but I'm not sure if they do the same with Gas Safety Records (inspection reports).

If the tenants don't contest the S21 eg by raising the issue of the lack or GSR at the start of the tenancy, I suspect the court will grant possession. I doubt they will demand to see the report or evidence of its provision to the tenants (or the EPC and other requirements) unless the matter is raised.

There are actually around 88 reasons a S21 might be invlaid - it would be a very pedantic judge who worked through checking them all unless the tenant was raising the issues:

S21 checklist (Is a S21 valid?)

If the court does dismiss the S21 Notice, you will have only 2 other ways to end the tenancy

1) mutual agreement with the tenants (which will likely make them ineligible for council housing having made themselves 'intentionally homeless'

2) via one of the 17 Grounds of a S8 Notice

[Deleted User]

Can you contact the engineer and ask for a copy invoice.  You could look at the gas safe register to get the engineers details https://www.gassaferegister.co.uk/. 

I would have thought a receipt for the right amount for a gas safe inspection would go far to prove the certificate was issued.  And the fact that certificates were available for every year since then (i.e. if the boiler was safe in following years, it was safe this one previous year).  

Bodkin64

anselld said:

What happened to the notice served six months ago?  Why is the solicitor issuing it again?

You may be able to obtain a copy from the gas man who issued it.

You may still issue s21 and hope that the lack of initial LGSR is not challenged, or if it is challenged that the Court accepts the invoice as evidence that it was done.

You are still able to sell with tenants in situ albeit to an investment buyer.

I understand that attempts to obtain a copy from the engineer have already failed. For a bit more background, we have had a buyer for sometime however he’s been dithering for months on end. For a while he was going to complete with the tenants in situ which would have been a load off our minds, however he’s changed his mind

Bodkin64

Slithery said:

Malcyb said:

...and the letting agent destroyed it as it was over 2 years old owing to GDPR.

This is the time to seriously start questioning your choice of incompetent agent. That's a terrible lack of understanding of GDPR and tenancy law on their end.

Malcyb said:

What I don’t understand is where we go assuming the S21 route doesn’t work.

Nowhere.

You won't be able to evict unless the tenant subsequently runs up arrears or you have another reason under S8.

https://www.compactlaw.co.uk/free-legal-information/public-housing/grounds-for-possession-assured.html

We aren’t experienced landlords and only rented the place out as it was my late MiL’s old house and my wife couldn’t bring herself to sell it at the time. However we need the funds from the sale now. Trust me we won’t be going into this business again after this experience so there’s little point regretting our choice of agent now. We just want to extricate ourselves with minimum pain.

Bodkin64

greatcrested said:

Have you asked GasSafe? I know they keep records of Installation Reports/Building Regulations certificates, but I'm not sure if they do the same with Gas Safety Records (inspection reports).

If the tenants don't contest the S21 eg by raising the issue of the lack or GSR at the start of the tenancy, I suspect the court will grant possession. I doubt they will demand to see the report or evidence of its provision to the tenants (or the EPC and other requirements) unless the matter is raised.

There are actually around 88 reasons a S21 might be invlaid - it would be a very pedantic judge who worked through checking them all unless the tenant was raising the issues:

S21 checklist (Is a S21 valid?)

If the court does dismiss the S21 Notice, you will have only 2 other ways to end the tenancy

1) mutual agreement with the tenants (which will likely make them ineligible for council housing having made themselves 'intentionally homeless'

2) via one of the 17 Grounds of a S8 Notice

No we haven’t asked GasSafe so might give that a try, thanks.
Let me check my understanding of what you’re saying re the S21. Our understanding is that the tenants want the stability of a council house and that they are simply jumping through the hoops they need to go through to get on the list, they don’t want to stay in our place longer than they need to. So are you saying that so long as the tenants don’t  contest the S21 (it seems as if they’d have no rational reason to?) then the court should overlook the lack of this one GSR? in other words this would only be a practical problem if the tenants contested it? Or would their “failure” to contest the S21 be considered as making themselves intentionally homeless?

Bodkin64

Just discovered there is a search facility on the gassaferegister website to order a replacement certificate (dating back to 2009)... however entering our postcode nothing comes up