Is there a defence to a S21 Possession Claim

[RayG]

My AST is dated 28 Feb. 3013. After constant arrears I now wish to evict and have served a S21. But I have stupidly neglected to get a gas cert every year. Before I issued the S21 I bought a new boiler and had it certified so I am now compliant with the gas regs. Is my past failure to have a cert a valid defence against a S21 possession order?

[KTC]

Go through: https://markprichard.co.uk/documents...lidity-checker

My AST is dated 28 Feb. 3013

Really? Can you sell me your time machine please!

Assuming 2013, was that the date of the last time a tenancy was granted / renewed / extended?

Please give answers as requested.

Deposit protected? Deposit prescribed information given?

[RayG]

Yes, apologies, 2013. This AST began on that date. Yes, deposit protected, prescribed info info given.

[RayG]

6 months, then holding over. Constant arrears and excuses from this benefit claimant, usually blaming the LHA for not paying him. I am very wary of a S8 application as he may counterclaim over the gas certs.

[RayG]

Obviously he is looking for angles to defeat the S21 and will be represented as he is on benefits and he may wait until he is evicted as he will then qualify for LHA housing. Family of five.

[RayG]

On the other hand an accelerated, undefended S21 procedure might do the trick and he hangs on till bailiffs come to call. Bailiffs... I hope not.

[RayG]

KTC, the Mark Pritchard checker is a great piece of drafting. Thanks very, very much and well done to him. I have been through it and I am a lot less worried. S21 is not concerned with faults committed by landlords but IS concerned with the latter's right to have possession without alleging fault on the tenant's part.

Of course, a vindictive and vexatious tenant (which is what I have, regrettably) could sue separately for the gas cert lapse, but what damage has he sustained to merit such a claim, a judge might ask. However, I doubt he will do so as repossession, or the prospect of it, does concentrate the mind somewhat. Moreover, I tried for three years to persuade this person to grant his consent for me to provide a brand new boiler (at a discount as he was qualified for one under the govt's energy scheme as a benefit claimant) but he ignored all requests for that consent. I paid full price in the end for the new appliance.

Comments, anyone?

[RayG]

Q1 – Where is the rented property located (England / Wales / Scotland / N Ireland)?

England

Q2 – What type of Tenancy Agreement (TA) is this e.g. sole tenant / multiple tenant / room only?

AST 6m joint tenants

Q3 – What date did current TA start dd/mm/yy?

28/02/2013

Q4 – How long was initial fixed term (6/12/24 months / other)?

6m

Q5 – Does the TA state that rent is due weekly? / 4-weekly? / per calendar month (if so, on what same date each month)?

monthly

Q6 – Did the TA require a tenant damage deposit to be paid? If so, on what date was this paid (dd/mm/yy)?

28/02/13

Q7 – If your query relates to a notice for repossession from the landlord (a Section 8 or Section 21 notice) or a tenants's notice to quit to the landlord, please provide the exact date the notice was sent/received (dd/mm/yy).

24/05/18

Q8 – Does the landlord live in the same property as the tenant?


No

[RayG]

Q1 – Where is the rented property located (England / Wales / Scotland / N Ireland)?

England

Q2 – What type of Tenancy Agreement (TA) is this e.g. sole tenant / multiple tenant / room only?

AST 6m joint tenants

Q3 – What date did current TA start dd/mm/yy?

28/02/2013

Q4 – How long was initial fixed term (6/12/24 months / other)?

6m

Q5 – Does the TA state that rent is due weekly? / 4-weekly? / per calendar month (if so, on what same date each month)?

pcm, due on the 28th day of the month

Q6 – Did the TA require a tenant damage deposit to be paid? If so, on what date was this paid (dd/mm/yy)?

Yes, on 28/02/13

Q7 – If your query relates to a notice for repossession from the landlord (a Section 8 or Section 21 notice) or a tenants's notice to quit to the landlord, please provide the exact date the notice was sent/received (dd/mm/yy).

24/05/18

Q8 – Does the landlord live in the same property as the tenant?


No

[mariner]

Did you have a valid current GSC when you served s21? Is GSC still current?

[RayG]

Mariner, yes, GSC was in force when S21 served and remains so until May next year.

[KTC]

Of course, a vindictive and vexatious tenant (which is what I have, regrettably) could sue separately for the gas cert lapse, but what damage has he sustained to merit such a claim, a judge might ask.

Nothing to sue for unless there's a breach of contract in there, and then yes the question of what damage has he suffered comes in.

Breaches of the gas safety regulations are criminal offence however....

Did you have a valid current GSC when you served s21? Is GSC still current?

Doesn't matter. Pre-Deregulation Act tenancy.

[RayG]

I would never serve a S21 if I were not CURRENTLY compliant with the gas regs. But that is belt-and-braces, as I do not know for sure if a judge would reject a S21 application if there were no current GSC. I'm not a lawyer.

But if there were no deposit protection in force when the S21 was served, I am sure the application would fail initially and that any unprotected deposit held would need to be returned to the tenant and a fresh application made. But again, I'm NOT a lawyer.

Separately I was asking if there is any defence in a case of PAST non-compliance with the gas regs which has since been rectified. Generally, there is no defence to a S21, we are told.

[KTC]

Separately I was asking if there is any defence in a case of PAST non-compliance with the gas regs which has since been rectified. Generally, there is no defence to a S21, we are told.

If the tenancy was granted on or after 1 October 2015 in England, not including statutory periodic tenancy arising from a fixed term tenancy granted before that date, and you had not given a valid GSC to the tenant before they occupy the property, then as far as it is understood at the moment, that is non-rectifiable and you would not be able to serve a valid section 21 notice.

* Non-binding county court decisions.

** May or may not be rectifiable if a new tenancy has been granted after the service of a valid GSC.

[RayG]

Thanks, KTC. Yes, this is an offence but now happily an historic one. I hold my hands up for being foolish.

But past mis-deeds will not be relevant in a S21 application, I hope, which is concerned with current compliance as at the date of service of the S21.