As we know, the Deregulation Act 2015, introduced a number of requirements that were intended to safeguard tenants and ensure basic standards of living. The effect of these requirements is to make things more complicated for both Landlords and Tenants.
One element of this new regime is the service of specific documents on the Tenant prior to commencement of the tenancy.
Those documents are as follows: –
- Prescribed information that the Landlord is required to give to the Tenant – the “How to Rent Guidance Notes”;
- Gas Safety Certificates and Energy Performance Certificates;
- Document relating to the initial requirements of the Tenancy Deposit Scheme.
In the event that a Section 21 Notice is served and the Landlord goes to Court it will be necessary for the Landlord to prove that these documents have been served on the Tenant.
In these circumstances the Landlord will usually look to his or her letting agent for assistance. It is therefore essential that the agent is able to show exactly how and when the relevant documents were served on the Tenant. Ideally the Tenant will be asked to acknowledge safe receipt of the documents.
Where the document are given at a face to face meeting the Tenant should be asked to sign a receipt. Of course this is not always practical and in some instances the documents will be posted to the Tenant, in which case a copy of the covering letter should be retained. In other cases the documents will be sent by email. It is important to note that if these documents are emailed to Tenants the Tenant must first have given an email address and has confirmed expressly that he or she is content to accept the service of notices and other documents under or in connection with the tenancy by email. This is a point that can be covered off as part of the Tenant’s initial application form but it is important that this detail is dealt with and that email is not relied on in circumstances where the Tenant has not consented.
This issue was brought into greater focus by the case of Caridon Property Limited –v- Monty Shooltz which was heard in Central London County Court on the 2nd February 2018. In this case there was no argument about the service of one element of the prescribed requirements – being the Gas Safety Certificate in this case – it was acknowledged that the Certificate had been served. The issue was that it had been served 11 months after the start of the tenancy.
Prior to this case it had been popularly assumed that non-compliance with the original requirements in the form of non-service of the Gas Safety Certificate could be remedied by serving that Certificate at any time. However this case clarified that the strict position is that the Gas Safety Certificate must be supplied “before the tenant occupies the premises”.
So we now know in addition to the service of the documents Gas Safety Certificate (and other documents) and being able to evidence that service we must ensure that the documents are provided prior to the Tenant taking occupation and no later than that. Failure to observe these requirements may result in a landlord being unable to gain possession after the service of a section 21 notice.
For more information or advice please call Will Oakes on 01206 239764.