Rejected Section 21 at the Court by the Judge

gazfocus

RHemmings said:

saajan_12 said:

sirajuddin said:

In 2022, another tenancy agreement was signed which I have valid GSC. 

I didn't think a lack of historical GSCs invalidated a Section 21 notice. If it did, then there would be no way to evict a compliant tenant. This page on Shelter seems to echo that

https://england.shelter.org.uk/professional_resources/news_and_updates/when_landlords_cannot_use_section_21_notices#:~:text=Gas safety requirements&text=A copy of the last,the start of the tenancy.

However OP, have you served a GSC since the one in 2022? These are required annually, not just at the start of the tenancy. Did you demonstrate this to the judge at the hearing? If so, you may have an argument for appeal.  

Legal opinion is here:

https://gasolicitors.com/landlord-tenant/landlord-and-tenant-gas-safety-certificates-section-21-notices-and-byrne-v-harwood-delgado/

Consequences for landlords if the Byrne v Harwood Delgado decision is followed by other courts:

A landlord who did not obtain a gas safety certificate prior to the start of an AST (assured shorthold tenancy agreement) is barred from using the section 21 procedure to recover possession. The landlord in this situation can now only evict their tenants using section 8 of the Housing Act with reliance on at least one of the grounds for possession found in Schedule 2 of the Housing Act. The only exception would be for a landlord who had an AST which became a statutory periodic tenancy prior to 1 October 2015. This exception is based on the Court of Appeal decision in Minister v Hathway. My view is the landlord in this situation could still use section 21.

The decision in Byrne v Harwood Delgado effectively changes an Assured Shorthold giving the tenant greater security from eviction. HHJ Bloom appears to acknowledge this when she says:

“I agree with Ms Bullen-Manson that the failure to obtain a GSR prior to occupation turns the tenancy into something that the parties did not envisage but the remedy is to comply with Regulation 2(2) and obtain the relevant record before the tenant moves in.”

If we follow the decision in Byrne v Harwood Delgado, a gas safety certificate is now a valuable document that can affect the landlord’s ability to gain possession. There is no central record for a GSC. What if the GSC is lost? Many landlords may have given the GSC to the tenant and not kept a copy. The landlord will presumably have to try and locate the gas engineer and hope a copy was retained. Alternatively, obtain evidence (under a civil burden of proof) to establish that a gas safety certificate was in existence before the AST was signed and the tenant took possession of a gas-safe property.

The decision may cause practical problems. For example, many landlords inherit properties from loved ones who have sadly passed away. If the deceased landlord did not have the tenancy documents the executors or beneficiaries are unlikely to be able to give direct evidence as to what did or did not happen. Hopefully, an agent may have been involved and will be able to supply the documents.

If limited to a S8, then the tenant can be evicted for the following reasons:

https://blackslegal.co.uk/what-are-the-grounds-for-possession-section-8-notices-for-landlords/

Mandatory Grounds 

If a mandatory ground is proven, the court must grant possession to the landlord. The current mandatory grounds are: 

• The landlord (or a member of their family) plans to move into the property. 

• The landlord wants to sell the property. 

• The landlord’s mortgage provider is repossessing the property. 

• The landlord doesn’t own the freehold for the property, and the leasehold has ended. 

• The property is a student let through an educational institute for a fixed term. 

• A religious organisation needs the property of a religious minister. 

• The landlord intends to demolish or redevelop the property. 

• The tenant has passed away. 

• The tenant has committed serious anti-social behaviour. 

• The tenant doesn’t have the right to rent. 

• The tenant is in at least three months rent arrears. 

Discretionary Grounds 

Unlike mandatory grounds, in the case of discretionary grounds, the court is able to decide whether an eviction is justified on a case-by-case basis. 

The current discretionary grounds are: 

• The landlord has provided like-for-like accommodation comparable to the current tenancy. 

• The tenant is in rent arrears (but not yet three months’ worth). 

• The tenant is not in arrears but has been constantly late paying their rent. 

• The tenant has damaged or neglected the landlord’s property. 

• The tenant is causing a neighbourly nuisance. 

• The tenant is using the property for illegal activity. 

• The tenant has damaged furniture provided by the landlord. 

• The tenant has breached other terms of the tenancy agreement. 

• The tenancy was obtained with a false statement. 

That's by far the longest list of reasons for a landlord being able to evict via a S8 notice that I have ever seen. 

Wow, learnt something new today. 

pinkshoes

sirajuddin said:

gazfocus said:

Have you had any EICR done since 2015 as you should be having that done every 5 years. 

Your best bet is to make sure you get a GSC done and a new EICR if you’ve not got a valid one (within last 5 years) plus go through the Section21 checklist, then try section 21 again once you’re confident all your documents are in order. 

Hi

Yes I do have now a valid EICR, GSC, plus all other required documents to covered section 21 service period but it was rejected because I failed to provide GSC for the beginning of the original tenancy. 

Ouch. Harsh ruling. So in theory, that means that you cannot EVER evict the tenant unless they default on their rent payments so an S8 can be issued instead??

Why do you want/need the tenant out?

If you need to sell the property, then you could sell it with a tenant in situ?

If the tenant has not paid their rent, then issue an S8.

Your only other option is to bribe the tenant, but you'd need to put a tempting time limit on it e.g. "Dear tenant. If you move out within 28 days (by XXXX date), I will pay you £2000 to cover the inconvenience of having to move. If you do not wish to move, then I am happy to continue the tenancy and no further financial incentive will be offered after this date."

Other options - is the rent in line with other market rents? If not, make sure it is. If you're stuck with this tenant, you might as well make sure you're getting maximum rent. 

AskAsk

gazfocus said:

Bookworm105 said:

gazfocus said:

Have you had any EICR done since 2015 as you should be having that done every 5 years. 

Your best bet is to make sure you get a GSC done and a new EICR if you’ve not got a valid one (within last 5 years) plus go through the Section21 checklist, then try section 21 again once you’re confident all your documents are in order. 

OP cannot retrospectively magic up a GSC dated in 2015 as that is the reason the judge refused the case

I didn’t suggest that the OP magic up a GSC from 2015 but they need to make sure they’ve got one now. They can’t be banned from serving a section 21 forever because of not having historical GSC paperwork so the priority is ensuring they are compliant now. 

have you not read their post before replying???  they have all the certifcates but not back when the original contract was issued and ended.

does sound very strange the judge decided not to accept S21 as they have all the certificates for the current contract.

OP - when was the oldest gas safety certifcate that you have for the property?  could it be that the judge rejected S21 notice because you never had any gas safety certificate the whole time that the tenant lived there between 2015 and 2022 when the new contract was issued.  That you had only got the boiler certified as safe for the new contract and that the property had been rented for 7 years without the boiler ever getting a gas safety certifcate done?

This would make it more understandable why the judge took a harsh stand.

theartfullodger

Negotiate with your esteemed tenant.  Be helpful, flexible (quick, very slow), offer if justified good references,  calm and polite. Bribery can work although I have never used that way myself 

gazfocus

AskAsk said:

gazfocus said:

Bookworm105 said:

gazfocus said:

Have you had any EICR done since 2015 as you should be having that done every 5 years. 

Your best bet is to make sure you get a GSC done and a new EICR if you’ve not got a valid one (within last 5 years) plus go through the Section21 checklist, then try section 21 again once you’re confident all your documents are in order. 

OP cannot retrospectively magic up a GSC dated in 2015 as that is the reason the judge refused the case

I didn’t suggest that the OP magic up a GSC from 2015 but they need to make sure they’ve got one now. They can’t be banned from serving a section 21 forever because of not having historical GSC paperwork so the priority is ensuring they are compliant now. 

have you not read their post before replying???  they have all the certifcates but not back when the original contract was issued and ended.

does sound very strange the judge decided not to accept S21 as they have all the certificates for the current contract.

OP - when was the oldest gas safety certifcate that you have for the property?  could it be that the judge rejected S21 notice because you never had any gas safety certificate the whole time that the tenant lived there between 2015 and 2022 when the new contract was issued.  That you had only got the boiler certified as safe for the new contract and that the property had been rented for 7 years without the boiler ever getting a gas safety certifcate done?

This would make it more understandable why the judge took a harsh stand.

It may be a matter for interpretation but the OP’s first post said a new tenancy was signed in 2022 and that he had a valid GSC for that tenancy. I was simply trying to ask whether they had a CURRENT GSC or did they believe the one from 2022 was still valid. 

AskAsk

gazfocus said:

AskAsk said:

gazfocus said:

Bookworm105 said:

gazfocus said:

Have you had any EICR done since 2015 as you should be having that done every 5 years. 

Your best bet is to make sure you get a GSC done and a new EICR if you’ve not got a valid one (within last 5 years) plus go through the Section21 checklist, then try section 21 again once you’re confident all your documents are in order. 

OP cannot retrospectively magic up a GSC dated in 2015 as that is the reason the judge refused the case

I didn’t suggest that the OP magic up a GSC from 2015 but they need to make sure they’ve got one now. They can’t be banned from serving a section 21 forever because of not having historical GSC paperwork so the priority is ensuring they are compliant now. 

have you not read their post before replying???  they have all the certifcates but not back when the original contract was issued and ended.

does sound very strange the judge decided not to accept S21 as they have all the certificates for the current contract.

OP - when was the oldest gas safety certifcate that you have for the property?  could it be that the judge rejected S21 notice because you never had any gas safety certificate the whole time that the tenant lived there between 2015 and 2022 when the new contract was issued.  That you had only got the boiler certified as safe for the new contract and that the property had been rented for 7 years without the boiler ever getting a gas safety certifcate done?

This would make it more understandable why the judge took a harsh stand.

It may be a matter for interpretation but the OP’s first post said a new tenancy was signed in 2022 and that he had a valid GSC for that tenancy. I was simply trying to ask whether they had a CURRENT GSC or did they believe the one from 2022 was still valid. 

i see, fair point.

Bookworm105

gazfocus said:

Bookworm105 said:

gazfocus said:

Have you had any EICR done since 2015 as you should be having that done every 5 years. 

Your best bet is to make sure you get a GSC done and a new EICR if you’ve not got a valid one (within last 5 years) plus go through the Section21 checklist, then try section 21 again once you’re confident all your documents are in order. 

OP cannot retrospectively magic up a GSC dated in 2015 as that is the reason the judge refused the case

I didn’t suggest that the OP magic up a GSC from 2015 but they need to make sure they’ve got one now. They can’t be banned from serving a section 21 forever because of not having historical GSC paperwork so the priority is ensuring they are compliant now. 

err, they can be, see the post above with the legal precedent

the judge ruled correctly in the case and therefore my post stands, OP lacks a GSC from 2015 so cannot use a S21 no matter what he now has 

Bookworm105

pinkshoes said:
Ouch. Harsh ruling. So in theory, that means that you cannot EVER evict the tenant unless they default on their rent payments so an S8 can be issued instead??

matter of opinion
I would imagine judges take a dim view of people claiming:  "I complied with the law from this date, so ignore the fact I didn't from an earlier date"

unlikely to be well received in court as a plea

I would be of the opinion that continuous compliance with the law is the very bedrock of the rule of law.

BikingBud

Bookworm105 said:

pinkshoes said:
Ouch. Harsh ruling. So in theory, that means that you cannot EVER evict the tenant unless they default on their rent payments so an S8 can be issued instead??

matter of opinion
I would imagine judges take a dim view of people claiming:  "I complied with the law from this date, so ignore the fact I didn't from an earlier date"

unlikely to be well received in court as a plea

I would be of the opinion that continuous compliance with the law is the very bedrock of the rule of law.

But in most circumstances there will be a statute of limitations.

Why not here?

The need to have a GSC is to protect the tenants. If it was in place continuously since the last contract was signed the tenant was protected since the last contract was signed?

As other rights seem to be diminished or removed when a new contract is signed why not here?

Section62

Bookworm105 said:

pinkshoes said:
Ouch. Harsh ruling. So in theory, that means that you cannot EVER evict the tenant unless they default on their rent payments so an S8 can be issued instead??

matter of opinion
I would imagine judges take a dim view of people claiming:  "I complied with the law from this date, so ignore the fact I didn't from an earlier date"

unlikely to be well received in court as a plea

I would be of the opinion that continuous compliance with the law is the very bedrock of the rule of law.

The bit in bold isn't what the OP is saying though.  They say they aren't sure whether there was a GSC in place and (so far) can't evidence that there was.

They aren't asking a court to ignore that they were breaking the law, because they don't know whether or not they were.

This is one of those bits of law (or at least the way you are interpreting it in the BiB) where the convention 'innocent until proven guilty' (also regarded as the very bedrock of the rule of law) is turned on its head to become 'guilty unless you can prove otherwise'.

As BikingBud points out, in most circumstances there will be a limit on what would reasonably be expected of someone over time - to expect a landlord to keep a GSC from 10 years ago, when the document itself is only valid for 1 year, is a strange way to run a country but it is what it is.

In other situations there would be a 'balance of probabilities' test, or de minimis would be applied.  Because at the end of the day what does the failure (if there was one) to obtain/provide a GSC 10 years ago have to do with whether one party to a contract should be able to bring that contract to an end now?