Section21 issued before March lockdown and latest developments

[Alistersmith]

Finally got an update from my Letting Agent:

Gas safety certificate from 2015 is unaccounted for, fully LA responsibility but may affect the claim. Was definitely done, paid for etc but company doesn’t exist now to obtain replacement. Any idea if I am sunk by this? Got all others and all other paperwork in order,

how to rent booklet saga still rolls on, irrespective of the fact it didn’t exist when AST commenced.

interestingly the council are very interested in the fact the house is sold stc, and have asked for sales memorandum. Sounds positive, but would they rehouse on the basis of this and a S21, without an Acc Rep and eviction notice? Perhaps I have become too cynical recently.

Unbeknown to me a second s21 was raised giving until Aug 20 to vacate so I am now less concerned about timing out ( first was issued in Mar for vacation by May.

[Borgie]

[QUOTE=Alistersmith;n1132183]Finally got an update from my Letting Agent:

Gas safety certificate from 2015 is unaccounted for, fully LA responsibility but may affect the claim. Was definitely done, paid for etc but company doesn’t exist now to obtain replacement. Any idea if I am sunk by this?

Did you find out about this at all ? I have a similar situation

I

[jase222]

I was under the impression that you only need to keep gas certificate for the last 2 years?

[Alistersmith]

LA is trying everything, statement from owner of company (now defunct), invoice and proof of payment for the GSC from 2015, but solicitor remains unmoved and wants the actual certificate to continue. Checking with other legal advice to see if this is definitely a blocker to my acc rep. LA feels this is (surprise surprise) just another govt legislative hurdle, ensuring that evictions are extremely difficult to achieve at this time. LA advised that they routinely keep at least seven years of records, however opined that LL who have changed agents could find that not all the historical records are transferred to new agent, so I am definitely not alone in this frustration.

interested if anyone has any ideas to break the impasse?

[jpkeates]

If the solicitor is declining to act further unless the GSC from 2015 is produced, there's nothing you can do, it's their choice.
If they impose that as a condition, I don't see what else you can do.

Presumably, the 2015 GSC covers the period when the tenancy began?
If so, is it included in the check in report or mentioned in any other documentation?

The issue isn't whether the certificate exists, the block on serving a valid s21 is that a copy has to be given to the tenant before the notice was served.
So, even if you find a copy, if you can't prove you gave a copy to the tenant (at very least) before serving the notice, its existence is moot.

The problem I think the solicitor is trying to address is that, if there was no actual certificate in existence (i.e. no test had been carried out and passed), the notice is invalid and s21 can never be used (because of a recent case - discussed here - https://nearlylegal.co.uk/2020/06/th...ell-conundrum/).

[Alistersmith]

The tenancy commenced on 3 jan 14 and GSC exists from then (and before with previous tenants). Current tenant received GSC on move in, and then every year since (renewed every March) unfortunately she does not keep them. She would be happy to state that she has received one every year, unfortunately it is the solicitor who needs convincing. So although I may be temporarily stuffed, I am perfectly comfortable that my S21 would be valid post COVID legalisation.

[jpkeates]

The issue is the solicitor then.

They're obviously concerned that not having a complete chain of CSC's might make the s21 notice invalid.
Which would be a worry.
So far the thinking was you needed the first and a current one to serve the notice.

[jase222]

I just looked and the HSE say you must keep gsc for 2 years?

[jpkeates]

I just looked and the HSE say you must keep gsc for 2 years?

That's fine for their purposes (although that might be helpful in a court), but if landlords are going to have to show that a GSC was done every year, their needs might be different.

[MKMike]

Refer your solicitor to Trecarrell House V Rouncefireld 2020
Provided there is an up to date gas report when the S21 is served, it is valid. Whether there was a gas report at the start of the tenancy, and whether there is a continuous sequence of reports, is no longer relevant.

[Alistersmith]

Thanks MKMike, I will forward today, however as I detailed earlier I am totally content that my S21 is valid, it is under the current circumstances where courts seem to be very particular. I suspect my solicitor, from experience or feedback is wary of putting a case in front of the court which is not judged as watertight at this time - to avoid giving any reason for it to be rejected, delayed by appeal etc. What I cannot get to the bottom of is; have any s21 or other possession cases been rejected for this reason ( post 23 Sep 20) i.e is the solicitor’s decision ‘sound’ in not submitting until the missing GSC is resolved?

[pebblepebble]

Refer your solicitor to Trecarrell House V Rouncefireld 2020
Provided there is an up to date gas report when the S21 is served, it is valid. Whether there was a gas report at the start of the tenancy, and whether there is a continuous sequence of reports, is no longer relevant.

In this case the GSC valid at the time the tenant move in was served but some months later.

Further down the article it says: There are, however, two difficult questions which are left open by the judgment. The first is what the position is if the landlord has not done a gas safety check (and so does not have a gas safety certificate) for the period before the tenant went into occupation. How (if at all) can that be remedied?

Although OP did have the check done, they are unable to prove it which might be why the solicitor does not want to take the case any further.

[jpkeates]

In this case, though, the missing GSC isn't the one that existed when the tenancy began or when the notice was served.
It's one of a sequence during the tenancy itself.

Unless I've misunderstood something.

[Alistersmith]

JPKeates you are spot on!

[Alistersmith]

I have scanned through all the SIs and iterations of the COVID act and found nothing related to a complete Gas Safety Record, however the updated acc rep N5a does indeed ask for copies of the complete sequence from start of tenancy to present! So although not backed up by any law, the form requires something arguably totally new and random. So although having each certificate satisfies the court, this does not mean you actually gave a copy to your tenant. My LA is currently getting a signed statement from the now defunct ( the company) gas engineer and a signed statement from the tenant that the 2015 gas safety check was done and that the tenant received it. If this doesn’t suffice then my S21 is dead ( possibly forever). My conclusion is you don’t need the complete GSR to serve a S21 however if you need to enforce it by the acc reposession method, then the hoops just keep on coming!