Gas Safety & Section 21: New Boiler Rules

A County Court ruling in Van-Herpen v Green & Green ([2023] County Court at Hastings) has clarified an issue that has troubled landlords concerning gas safety certificates and section 21 notices. Specifically, the case addressed the requirements following the installation of a new gas device, such as a boiler, after the commencement of a tenancy.

Background

The tenants began their tenancy in September 2018, and a new boiler was installed the following day. The gas safety engineer conducted the checks necessary for commissioning the boiler but did not issue a Gas Safety Certificate (GSC), only a Building Regulations Compliance Certificate (BRCC), which was not served to the tenants. Following a subsequent visit due to issues with the boiler, the engineer performed a complete safety check, but again, no GSC was issued because the boiler was less than a year old.

When the landlord served a section 21 notice for possession, the tenants contended that the notice was invalid due to the absence of a BRCC and a GSC for the checks performed.

Court Ruling

The Deputy District Judge found in favour of the tenants, concluding that the Gas Safety (Installation and Use) Regulations 1998 (the 1998 Regulations) were not complied with. According to the Judge, the checks made by the engineer on installation and during the follow-up visit qualified as "relevant checks" under regulation 26(9) of the 1998 Regulations. Consequently, a record of these checks should have been made and served on the tenants per regulations 36(3) and 36(6)(c). The Court's stance was that the minimum standard of conducting a safety check within 12 months of installation does not preclude the need to provide a record when checks are performed sooner. The failure to serve the BRCC or a GSC arising from the November inspection rendered the section 21 notice invalid.

Implications for Landlords

The judgment highlights that landlords must ensure a record is created and served on tenants immediately after any gas safety check, not just after installing a new gas appliance or within the first twelve months. It may become a precedent that even if a boiler is new, the law requires landlords to provide tenants with the relevant gas safety documentation without delay.

This decision has potentially far-reaching implications, mainly if a landlord installs a new boiler shortly before letting out the property. In such cases, the absence of a BRCC or GSC could preclude the use of section 21 for eviction, as established in previous cases such as Trecarrell House and Byrne.

The case serves as a stark reminder for landlords to diligently adhere to gas safety regulations and the proper serving of documents to tenants, as failure to do so can have significant consequences on their ability to gain possession of their property.

As always, it should be noted that this is a first-instance County Court decision, and while not binding on other courts, it indicates how the law is being interpreted on this matter.

More information

Thank you to Nearlylegal for reporting the case; their summary here.