UK Landlord Forum / Life

My tenant is defending an accelerated possesion order. The defence is that I didn't use a gas safe gas engineer upon the tenancy starting and the year prior. Has anyone been in similar situation and had the order thrown out? Am I likely to have to start from scratch again. I didn't know he wasn't registered

See https://www.hse.gov.uk/gas/domestic/faqlandlord.htm

Click on What are the duties of the agent in relation to gas safety? and Do I have to use a Gas Safe registered engineer to complete gas work?

Then see the footnote on page 8 of the PDF version of the Section 21 flowchart here /https://nearlylegal.co.uk/section-21-flowchart/

Thank you. Sounds like I'm going to have a difficult time

If there was no gas safety inspection performed before the tenancy began, using a section 21 is likely to be impossible. It's not a question of starting again, at the moment, the view is that there's no way to correct that issue.

The issue might be affected by how you came to select the unregistered engineer. Did they say they were qualified and they misled you, or did you just get someone to do it on the cheap?

Quote from: jpkeates on October 20, 2023, 08:54:14 AMIf there was no gas safety inspection performed before the tenancy began, using a section 21 is likely to be impossible. It's not a question of starting again, at the moment, the view is that there's no way to correct that issue.

The issue might be affected by how you came to select the unregistered engineer. Did they say they were qualified and they misled you, or did you just get someone to do it on the cheap?

He was a friend of mine, he did the gas check prior the year before too before I decided to rent it. So I just presumed he was registered.  The issue I've got is I stupidly didn't do another gas check for 2.5 years. When I did get the check done through an agent it came back unsafe due a visual disrepair sign the flue and if the check was done properly before when the tenant moved in this would have picked up! Any advice on what I can do please?

I've checked on gas safe website and now believe this gas certificate is not valid due to engineer not being registered

I think between you and your friend you have ended any chance of being able to use a section 21 to remove this tenant (and I suspect that the tenant knows this).
So you need to explore the section 8 route (hopefully the tenant has given you some grounds.)

Alternatively you could explore paying the tenant to leave or raising the rent repeatedly (probably once a year is the maximum possible frequency, given the power of the tenant).

Or live with the tenant in place going forward, until they choose to leave.

Quote from: sugarlips33 on October 20, 2023, 09:33:22 AMThe issue I've got is I stupidly didn't do another gas check for 2.5 years.

On a tangent to the main issue... did you take a deposit from the tenant?

If so, did you protect it in one of the 3 tenancy deposit protection schemes and, within 30 days of receipt, did you give the tenant the Prescribed Information?

Quote from: HandyMan on October 20, 2023, 01:20:21 PM

Quote from: sugarlips33 on October 20, 2023, 09:33:22 AMThe issue I've got is I stupidly didn't do another gas check for 2.5 years.

On a tangent to the main issue... did you take a deposit from the tenant?

If so, did you protect it in one of the 3 tenancy deposit protection schemes and, within 30 days of receipt, did you give the tenant the Prescribed Information?

Yes I did

Quote from: sugarlips33 on October 20, 2023, 01:27:24 PMYes I did

Good. At least you won't have the tenant making a ££££ claim against you.

Quote from: jpkeates on October 20, 2023, 09:39:04 AMI think between you and your friend you have ended any chance of being able to use a section 21 to remove this tenant (and I suspect that the tenant knows this).
So you need to explore the section 8 route (hopefully the tenant has given you some grounds.)

Alternatively you could explore paying the tenant to leave or raising the rent repeatedly (probably once a year is the maximum possible frequency, given the power of the tenant).

Or live with the tenant in place going forward, until they choose to leave.

A hearing has now been set for this in December. Not sure what's going to happen.

If you need the property back for some reason, I'd consider paying the tenant a large sum of money to move out.
Otherwise, accept the situation and consider putting the rent up?

Quote from: jpkeates on November 11, 2023, 10:38:18 AMIf you need the property back for some reason, I'd consider paying the tenant a large sum of money to move out.
Otherwise, accept the situation and consider putting the rent up?

Do you have any experience in this? I just want the property back to sell. What are the chances of the judge giving possession at this hearing

The only reason my answer isn't zero is because judges don't have to follow the guidance from similar cases and your case has an interesting wrinkle in that you seem to have tried to have met the prescribed requirements. But, no, I have no personal experience of this.

My thinking is that given that the tenant clearly knows what they're doing, my guess is that they'll have the recent judgements from Trecarrell House Limited v Rouncefield and Byrne v Harwood-Delgardo to hand to give to the judge. That should establish that having no valid GSC completed before letting a property is fatal to any section 21 notice afterwards related to that tenancy.

And, I think the judge will see your failure to check that the person you selected to complete the check was qualified to carry it out isn't reason to take a different approach. And the fact that there was a failure when the job was done by someone qualified later looks terrible. As does not doing the check for another 2 years after the first attempt. That one's just my opinion, though, because the situation is new to me.

Issues with the size and location of flues are common and aren't consistent across different fitters, but that's not going to help you.

Thank you for your comments. On the hearing letter it says 'I am not satisfied the claimant is entitled to use the accelerated procedure- list for hearing approx 10mins when both parties should attend.


Keep thinking this sounds like it's going to be thrown out