Section 21 hearing scheduled but cannot provide one gas safety certificate

[Jeremyst]

Does the fact that I (landlord) am not able to provide the 2016 gas certificate but can provide the gas certificates for all other years for this particular tenancy at the S21 hearing to gain possession of tenant who has refused to leave at the end of the AST contract (and who hasn’t paid the rent fir six months) make it likely for my case to be dismissed by the Judge?

if yes, does this mean that the ex tenant can stay on indefinitely? How do I then get possession of my property?

[Jon66]

You use s8 ground 8 is you can't use s21. You refer to ex tenant, but they are still your tenant.

You should be ok following https://www.bailii.org/ew/cases/EWCA/Civ/2020/760.html

[KTC]

What is the tenant defense, or the possible problem with you application that the judge identified that led to the hearing?

Did you actually have a certificate and just can't find a copy of it? Did you give it to your tenant, regardless of whether you have evidence of it?

When did the tenancy actually start? Did you have a certificate then? Did you give a copy to your tenant?

[royw]

I thought you only had to produce the current one and evidence tenant had a copy of the one valid when when they moved in?

[jpkeates]

The court forms now ask for all certificates.

[theartfullodger]

If hearing scheduled (really?) you may as well attend (virtual ?) , calm polite and helpful and see if you're lucky.

Do we assume you'll provide no reference or only a full, honest one?

Good luck

[Jeremyst]

Thank you all for your advice and insights, much appreciated.
In reply to your points:
- S8 seems to be the way forward if S21 fails, as in a few days the unpaid rent will have been overdue fir more than 6 months
- The court requires the gas certificates of every year of the tenancy to be provided.
- I did arrange for the gas check to be carried in 2016, it passed, but cannot locate the certificate. Nor can I locate the gas engineer as I understand he has moved abroad. I have provided the court with all the required S21 documents / info - some 20 docs - EXCEPT the gas certificate for 2016. The gas certificates for 2015 (commencement of tenancy), 2017, 2018, 2019 and 2020 were all provided (the 2020 one is still valid) to the court.
- (Repeating the last point) the tenancy commenced in 2015, when a pass gas certificate was provided (and which I could locate and provide to the courts together with the gas certificates of every other year except 2016).

My question -

Do you think the court will take into account the fact that I have provided everything except the 2016 gas certificate and not dismiss the case because just one document couldn’t be provided? Surely I am human and a document (out of many in a period of 6 years) can get mislaid by accident?

Thanks again

[jpkeates]

My question -

Do you think the court will take into account the fact that I have provided everything except the 2016 gas certificate and not dismiss the case because just one document couldn’t be provided? Surely I am human and a document (out of many in a period of 6 years) can get mislaid by accident?

I don't think anyone can answer that in any useful way.

The Gas Safety (Installation and Use) Regulations 1998 which set out the requirements for a GSC mandate that records have to be kept for two years, so there's no reason for anyone to have kept them for longer than that, and it's not possible to go back in time to keep any that you may have, quite reasonably, thrown away in the interim.

The requirement for a gas safety certificate to have been given to a tenant at the start of the tenancy in order to serve a s21 notice has arisen retrospectively, so it, again, is an issue that the courts are going to have to sort out somehow.

The requirements for a s21 notice don't actually require a GSC to exist all through the tenancy agreement, regardless of the content of the court papers.

A copy of the last certificate completed before the tenancy has to be given to any new tenant (the requirement is to do it within 21 days, but that deadline doesn't apply for s21 purposes) and a copy of any certificate created thereafter has to be given to the tenant. Only section 6 and 7 of the Gas Safety Regulations have to be complied with.

It might be that it's better for the landlord to claim that no check was done, so there was no certificate to give - because that would be compliant with the legislation - but I wouldn't like to risk that.

The practical issue is that the engineer usually gives the tenant their own copy of the GSC, the landlord's copy is one for their own records (and given that they're often digital versions they may not be identical), so landlord's aren't likely to have historic copies of what the tenant was given or any way of getting them now.

It's quite possible that the tenant was given the copies and the landlord was never in possession of them at all.

[KTC]

the tenancy commenced in 2015

If we're talking about before 1 October 2015, and there's been no new tenancy (renewal, extension etc. however it's named) apart from the statutory periodic tenancy that arose at the end of the original fixed term, then all the talk about GSC is moot since in relation to s21 it pre-dates the requirements and it's not retrospective on this point.

[Jeremyst]

Thank you both

[GaryGoals]

I was in a similar situation, my letting agent questioned giving a S21 to my tenants due to me only having the last 2 GSC’s. I sought advice from a solicitor who informed me you only need to hold the last 2 IAW HSE.

[Jeremyst]

That’s really encouraging thanks!

[islandgirl]

Just a thought - can you prove a payment for the check to the gas engineer at that time? May be additional evidence that a check was actually done

[Jon66]

A very good point.

[Jeremyst]

No I’m afraid I can’t. Periodic payments against more than one job were made. An individual payment against a gas check could not be shown against any of the gas checks done over the tenancy period (including for the 5 years during the tenancy period when I was able to locate the gas certificates)