Voided AST ?

[kip22]

If a gas certificate was not given to the new tenant at the start of the new tenancy, would it invalidate the AST ???

[Lawcruncher]

No it would not.

[theartfullodger]

A valid AST would almost certainly be in place with no paperwork exchanged, verbal agreement only.

[jpucng62]

It might preclude a S21 eviction.

[kip22]

If letting a property without a Gas Certificate to a new tenant is illegal, how can the AST be valid then, is not an invalid AST only until a gas cert is produced.

[KTC]

I can open a shop at a location to sell something without the appropriate licence to trade in that type of goods, doesn't mean the transaction that took place where you bought something from me is not valid.

There's set out penalties for breach of the relevant law, invalidating the tenancy is not one of them.

[flyingfreehold]

it may well be however that you would have difficulties suing for rent at the county court if unpaid. The Judge will take a very dim view

[jpkeates]

If letting a property without a Gas Certificate to a new tenant is illegal, how can the AST be valid then, is not an invalid AST only until a gas cert is produced.

It takes a lot to void a contract in English law.

Letting a property without a gas certificate isn't illegal.
Not having a gas certificate isn't lawful, but it doesn't make the let itself illegal.

[kip22]

I understand the points made, but to labour the point.

By Law I am supposed to supply a 'How to rent' guide, EPC and Gas certificate preferably before the tenants move in date.

The agreement was signed prior to the tenancy start date and the above mentioned documents followed after they were requested 12 days later by the tenants, as that made the property theoretically unsafe during that time ie: the tenants moved in and the boiler blew up, god forbid, and guidelines were not followed, could the tenant argue that as these documents were part of the AST agreement and clearly states they should be passed to the tenant before or on the start date within the AST agreement.

The AST was unenforceable and none binding until the documents were given to the tenants

Main point is the Gas certificate was dated 12 days after the tenancy start date and no prior gas certificate given to prove a continuity of certification.

[Jon66]

Asked and answered. The tenancy commenced the day the tenants moved in irrespective of the requirements to provide documents. If the government wanted to void agreements because of the lack of documents they would have legislated as such. They haven't and you cannot imply an intention to do so because there has been no such intention, this is evidenced by the penalties that do exist for not meeting statutory duties.

[KTC]

The tenant cannot use it to get out of their agreement to a tenancy of a fixed term of however long. To allow so under your logic would allow the landlord to (possibly maliciously) do the same after being at fault for it in the first place.

Each of the statutory requirements you are talking about carries with it respective statutory penalties. Not giving a copy of the GSC before occupation is a criminal offence, with a maximum sentence of an unlimited fine and up to 2 years imprisonment. Additionally (simplyfing) no s21 notice until one has been supplied. Notice that last one, parliament has specificly legislated to make it harder for landlord to evict a tenant without having given a GSC. Not only had it considered the issue specifically related to AST, they have decided by implication that the AST must be valid since otherwise the penalty cannot possibly apply.

In your hypothetical situation, the remedy to a tenant before the boiler blew up is a complaint to the HSE, council or possibly court forcing the landlord to get the gas checked. A claim for disrepair could certainly be considered after the boiler blows up. If such damages are done that the property is inhabitable, that's a claim on its own under fitness for human habitation, and also breach of contract for the landlord not supplying a place to live that the tenant has and is paying for.

Pedantically, lack of a GSC available to the tenant does not make the property unsafe. It's a lack of evidence to the tenant that the property is safe. They are not the same thing.

[jpkeates]

The AST was unenforceable and none binding until the documents were given to the tenants

It would be possible to create a tenancy agreement that was not made as a contract until other documentation was supplied to the tenant.
Conditional agreements are possible, although why a landlord would do that is lost on me.

However, a contractual term which allowed the landlord, simply by not doing something the law required them to do, to invalidate an agreement would almost certainly be an unfair term.

And, to take the example to it's extreme, let's imagine that the agreement was somehow invalid and void.
The tenant would still have possession of a property in change for rent or the promise of rent, so there's still be a tenancy, the only problem would be the terms would be not documented.
The landlord would still have to satisfy their legal obligations or face the appropriate sanctions.

[kip22]

This is the dilemma, as the tenants never actually physically moved in, as the Gas cert was one of many documents not offered at the start of the tenancy and the tenants lost confidence in the landlord, the property and future financial problems among other repercussions.
But the Landlord ignores these facts and is arguing the AST is still valid and trying to claim rent arrears for thousands for that reason.

[theartfullodger]

So kip, are you agent, tenant housing advisor?? If agent I'd fire him.

[KTC]

Who knows?

If the tenant had taken possession, then the landlord have no obligation to mitigate loss on unpaid rent, and the tenant would unquestionably be liable for the entire term (or till surrender accepted).

But if the tenancy was not by deed, then without the tenant taking possession, there's no tenancy yet. A court may or may not come to a different decision on mitigation for the breach of contract without the tenancy starting.