The 6 April 2018 saw the implementation of the Gas Safety Regulations (Installation and Use) – (Amendment) 2018 (The Regulations). This has provided landlords with more flexibility around the renewal of gas safety records. The changes were introduced following a consultation carried out by the Health and Safety Executive (HSE) between November 2016 and January 2017.
Prior to the amendment, the 1998 Gas Safety Regulations required landlords to complete gas safety checks “within 12 months” of the installation or the last check.
Landlords often began this process early in order to avoid issues gaining access to properties. It is common for this to result in 11 checks taking place, on average, every 10 years as opposed to the statutory 10 checks.
This ‘over-compliance’ was potentially placing an unnecessary and unintentional financial burden on landlords.
Benefits of the new Gas Safety Regulations 2018
The new Gas Safety Regulations have been designed to give the landlord increased flexibility without compromising the safety of the tenant. The Approved Code of Practice and guidance gives advice on how to meet the requirements.
Download a copy of the guidance here.
It is important to highlight that the new Gas Safety Regulations do not alter a landlord’s legal obligation to carry out an annual gas safety check. The amendments have introduced flexibility in the timing of annual gas safety checks without disadvantaging them by shortening the safety check cycle.
The new flexibility reduces the issue of ‘over-complying’ and it also enables improved maintenance planning, benefiting both the tenant and the landlord.
‘MOT’ style renewals
The new Gas Safety Regulations 2018 give the landlord an option to renew the gas safety record up to two months prior to the ‘deadline date’. The deadline date is the end of the 12 month period i.e. during months 11 and 12 of the current gas safety record – without losing any of the validity period.
Following completion of the check, the record will be treated as if it has been carried out on the last day of the 12 month period of validity.
It is important to note that the MOT style of renewal is only available to a landlord if he can prove that the two previous checks were carried out on time.
Gas safe engineers
All Gas Safety Inspections and servicing should be carried out by a fully qualified Gas Safe engineer. You or your tenant should ask the engineer to present their ID on arrival to ensure that they are certified. Unfortunately, over a quarter of a million illegal jobs are carried out every year by unqualified engineers.
Your Gas Safe engineer must be able to check that:
- the flue is continuous throughout its length;
- all joints are correctly assembled and are appropriately sealed; and
- the flue is adequately supported throughout its length.
Unless the gas engineer can make these checks, they cannot ensure that the flue from the boiler is safe in order to comply with their legal duties. They will not be able to issue a Gas Safety Certificate which means that the system should be shut down as it is illegal to let a property without one.
Fitting inspection hatches in the ceiling (and, where relevant, stud wall) will ensure that the engineer can carry out his inspection and issue the Gas Safety Certificate that landlords need to comply with the law.
Mary Latham, one of LettingaProperty.com’s most experienced professional landlords, urges landlords to take their inspections seriously:
Landlords please don’t wait to check whether your flue is visible and if not get inspection hatches fitted in the next couple of weeks because, as we all know, if a boiler is going to breakdown it is going to do so during the next few months and the engineer will turn it off unless he can comply with the regulations.Mary Latham, Landlord at LettingaProperty.com
Replacement of new appliances
In addition to this change, where an appliance is replaced or added to a property, the gas safety check for the said appliance can now be carried out up to 14 months after the installation.
However, this may only be permitted once in relation to each new appliance and only if this aligns the safety check with the existing deadline date for the other appliances or flues in the same property.
The final amendment to be aware of is that as a minimum requirement, the last two records must always be retained by the landlord.
Although the previous Gas Safety Regulations required a record to be kept for at least two years, we have always recommended to keep them for much longer — and we should stick to this advice.
In the event that a landlord cannot evidence the two previous gas safety records, the expiry date of the current gas safety record will be used as 12 months from the date of the last gas safety check.
What is my right to enter the property to carry out a gas safety check?
A landlord will need to take all reasonable steps to arrange access to the property to ensure the gas safety check is carried out on time.
It is advisable to maintain a record of any action, in the event that the tenant refuses access and the landlord needs to demonstrate the steps that have been taken. If the tenant refuses access and the record is close to expiry or has expired, it would be advisable to inform the Environmental Health Department that the property does not have a valid gas safety record and to serve a Section 8 under ground 12 for breach of contract.
This will demonstrate to the tenant the severity of the breach, giving the tenant 2 weeks to allow access before court proceedings begin.
What if the property is sublet?
In the event that the property is sublet the ‘head landlord’ retains the legal obligations under the Regulations.
What if the gas appliances belong to the tenant?
A tenant is permitted to make use of their own gas appliances within the landlord’s property, the appliances are not the landlord’s liability as they belong to the tenant.
However, the landlord has a legal obligation to ensure the installation of the gas within the property is checked. This needs to be carried out periodically as opposed to annually.
If an engineer was testing other appliances, i.e. a boiler within the property, it would be reasonable to check the installation of gas to the cooker that belongs to the tenant, therefore the check would be carried out annually.
Section 36) 2) of the Gas Safety Regulations states:
(2) Every landlord shall ensure that there is maintained in a safe condition—
(a) any relevant gas fitting; and
(b) any flue which serves any relevant gas fitting,
so as to prevent the risk of injury to any person in lawful occupation or relevant premises.
Requirements under Gas Safety Regulations for HMOs
On request, landlords of houses in multiple occupation (HMO) must provide a copy of the gas safety record to the local authority.
This applies to all HMO’s, not just licensable HMO’s.
Are any tenancies exempt from the requirement to provide a gas safety record?
Obviously, properties without the supply of gas are not required to provide a gas safety record. Tenancy agreements granted for seven years or more are also exempt from the landlord having to provide the tenant with a gas safety record.
Penalties for non-compliance of Gas Safety Regulations 2018
Failure to comply with The Regulations is a serious offence.
Being unable to provide a gas safety record is a criminal offence and landlords can be liable for unlimited fines and/or six months of imprisonment.
This is also classed as a hazardous situation and landlords can be subject to enforcement actions, such as prohibition or improvement notices or even emergency remedial action by the local authority.
Gas safety records and the effect on Section 21 notices
Under the Deregulation Act 2015, all landlords of assured shorthold tenancies on properties where there is gas, must provide their tenants with a valid gas safety record prior to the commencement of the tenancy.
This forms part of the prescribed legal requirements to be served on the tenant alongside the Energy Performance Certificate. Currently this applies to all tenancies that commenced or were renewed on or after 1 October 2015. However, after 1 October 2018. this is intended to apply to all section 21 notices.
Gas safety case studies
In June 2017, the case of Assured Property Services Ltd v Ooo found that failure to provide a gas safety record prior to the tenant occupying the property was in breach of the Deregulation Act 2015. This prevented the landlord from serving a Section 21 notice on the tenant and his application for possession was refused with costs being awarded to the tenant.
In February 2018, the case of Caridon Property v Monty Shooltz also refused possession on the basis that the Section 21 notice was invalid due to Caridon Property failing to serve a valid gas safety record prior to the tenant moving in. A gas safety record was issued to the tenant 11 months after the tenancy began, and prior to the service of the Section 21 notice, but the judge did not accept this to be sufficient. The case went to appeal and the County Court Circuit Judge upheld the decision of the trial judge.
Advice to landlords
Up until now, the generally accepted advice has been, since the introduction of the Deregulation Act 2015, that these records can be served late, providing this occurs prior to serving a Section 21 notice.
The Assured Property Services Ltd v Ooo case, and a more recent case of Caridon Property Ltd v Monty Shooltz, make it clear that this is NOT the case in respect of the serving of gas safety records, due prior to the tenant move in. These judgements cannot safely be interpreted to apply if the tenancy or gas safety record had been correctly renewed.
These cases show it is vital that the gas safety record is served on the tenant prior to the commencement of the tenancy and prior to the issuing of keys. Ideally, evidence of receipt will be gathered to defend any court claim, perhaps using a form that is signed and dated acknowledging receipt of the documents by the tenant.
To arrange for a GasSafe registered engineer to carry out a landlord’s Gas Safety Certificate, please visit our website or contact our landlord team on 0333 577 8888.