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Question

Gas Safety (England) | Landlord Wants Tenant to Leave (England)

is the Section 21 a non-starter?

12 Jul 2018 | 3 comments

My landlord client wants to evict his tenant as he is in the process of selling the property. The tenancy commenced in September 2016, however the landlord failed to provide a gas safety certificate prior to the tenant moving in, he protected the deposit late and provided the How to Rent checklist and EPC just before serving a s.21 notice. Is the Section 21 procedure a non-starter?

in terms of the deposit breach – it is with the DPS and the landlord has authorised for it to be released to the tenant however the tenant is refusing to withdraw it from the DPS.

The landlord has looked at the section 8 route but appears to only be able to rely on the discretionary ground that she does not pay her rent on time. So this is a risky route, one of which the landlord is not keen on spending money on if possession cannot be guaranteed.

The landlord is keen to get possession so that he can sell his property. The tenant appears content in defending all proceedings.

Is there any way around the Section 21 issue? the Landlord has considered providing her with a new AST but this would not get around the fact that the gas safety was not provided to her prior to her moving in the property. Also she is unlikely to agree to a new tenancy.

Answer

3 Comments

  1. guildy

    In order to serve the section 21, the deposit should first be returned to the tenant in full. The offering to return via DPS may not be sufficient and it must be actually repaid. This has yet to be decided.

    Then, as long as the most recent gas safety has been given before a section 21, given the other documents have been served our view is that it’s worth the risk pursuing the section 21 route.

    You are right that it’s a problem about the gas safety not being given “before occupation” but, not many are aware of this rule and all court cases to date have only been county court so not binding. It remains to be seen if that will turn out to be fatal to a section 21. At the moment, we don’t think we’re quite there yet.

  2. eden2011

    We recently had a s21 Claim which has gone to a hearing as the requirmentbshoudl have heen that it was issued BEFORE the tennacy commenced
    Please refer to this
    Caridon Property Ltd v Monty Shooltz, in the Central London County Court,

    https://nearlylegal.co.uk/2018/02/i-can-serve-gas-safety-certificates/

    It might be worth erring upon caution, but that said our case is the only one I’ve actially heard of

    • Talbots

      Were you successful in obtaining possession under s.21 notwithstanding the gas safety had not been issued prior to the tenancy commencing?

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