Landlord Charging for Gas Safety Check

[DanS.]

Good afternoon everyone.

I am currently in dispute with my Landlord about charging me, the tenant, for a gas safety check.

We have lived in this house since 2014. In the contract (Assured Shorthold Tenancy) there is a section under 'Letting Provisions' that reads as follows:

(3.17) The Landlord warrants that he will comply with the Gas Safety (Installation and Use) Regulations 1998 by providing a copy of the Safety Certificate to the Tenant of the last check undertaken at the premises and further the Landlord or The Landlord's Agent shall retain a record of such check, the cost of the gas check to be paid by the Tenant.

I am obviously not a lawyer, which is why I'm here. I was only made aware that this seems very uncommon when it recently came up in conversation with my In-Laws. Up until now I have always paid for the Gas Certificate, simply because I didn't know any better and it was in the contract. Some research (Shelter and Citizens Advice) referred me to the Tenant Fees Act 2019. The Gas Safety Check is not directly listed in the list of banned fees however it also does not appear in the list of fees a Landlord is permitted to charge.

So far I have sent my Landlord an email kindly denying him payment and informing him about what I have found on Shelter and what Citizens Advice have told me. The reply I received did not aknowledge the information I sent him and instead he referred to the above section of the contract and once again requested payment.

On top of that he did not provide an invoice, instead, I quote "I think it's £72".

Any help on how to go about this from here on would be very much appreciated.

[des8]

My understanding is that while it is the landlord's responsibility to have the check done there is nothing to prevent it being in the tenancy agreement that the tenant reimburses the landlord.
I however would want to see the original invoice from the safety inspector before paying it!

[DanS.]

Thank you for your reply.

Would putting that into a contract not contradict the Tenant Fees Act? I was under the impression that I cannot sign my rights away.

Tenant Fees Act 2019

Page 4

From 1 June 2019, the only payments that landlords or letting agents can charge to tenants in relation to new contracts are:

• rent
• a refundable tenancy deposit capped at no more than 5 weeks’ rent where the total annual rent is less than £50,000, or 6 weeks’ rent where the total annual rent is £50,000 or above
• a refundable holding deposit (to reserve a property) capped at no more than 1 week’s rent
• payments associated with early termination of the tenancy, when requested by the tenant
• payments capped at £50 (or reasonably incurred costs, if higher) for the variation, assignment or novation of a tenancy
• payments in respect of utilities, communication services, TV licence and Council Tax
• a default fee for late payment of rent and replacement of a lost key/security device giving access to the housing, where required under a tenancy agreement

If the fee you are charging is not on this list, it is a prohibited payment and you should not charge it. A prohibited payment is a payment outlawed under the ban.

Unless this would come under "Payments in respect of utilities, communication services, TV licences and Council Tax. However this sections about utlities links to Page 58 which reads:

"Yes. Tenants are still required to pay for any utility services, such as gas, electricity or water that they consume"

This is why I require further clarification since it seems a bit of a gray area, apart from Citizens Advice and Shelter seemingly confirming my findings so far by simply linking me to the above list saying since Gas Certificate is not on there and therefore it is a banned fee

[R0b]

Your interpretation is correct Dans.

The Tenant Fees Act would prohibit it though your landlord might argue it falls within the category of paying utilities, however I don't think so.

[ostell]

I think the statement "in relation to new contracts" is relevant

[DanS.]

I think the statement "in relation to new contracts" is relevant

I did as well until I found the following on Page 8 of the document I linked to:

1. As of 1 June 2020, the ban on fees will apply to all applicable tenancies and licences to occupy housing in the private rented sector, regardless of when they were entered into. Landlords are responsible for the costs associated with setting up, renewing or ending a tenancy (i.e. referencing, administration, inventory, renewal and check-out fees).You will not be able to charge any fees after this date (apart from those fees which are expressly permitted under the ban – see above). What does this mean for existing tenancy agreements? If a tenancy agreement was entered before 1 June 2019, you can continue to require a tenant to pay fees written into that agreement (e.g. check-out or renewal fees) until 31 May 2020.

After 1 June 2020, the term requiring that payment will no longer be binding. Should you, in error, ask a tenant to make such a payment, you should return the payment immediately and must return this within 28 days. If you do not return the payment within 28 days, you will be treated for the purposes of the Act as having required the tenant to make a prohibited payment (a payment that is outlawed under the ban).

[des8]

It always pays to read the Act before putting pen to paper.(which I didn't do earlier but have now!)

Schedule 4 includes this:
Payment in respect of utilities etc
9 (1) A payment for or in connection with the provision of a utility is a permitted payment if the tenancy agreement requires the payment to be made.

I think the landlord could argue (whether successfully or not is a different matter!) that the requirement for the gas safety certificate is to do with the provision of a utility and thus the payment required by the tenancy agreement is permitted

[DanS.]

It always pays to read the Act before putting pen to paper.(which I didn't do earlier but have now!)

Schedule 4 includes this:
Payment in respect of utilities etc
9 (1) A payment for or in connection with the provision of a utility is a permitted payment if the tenancy agreement requires the payment to be made.

I think the landlord could argue (whether successfully or not is a different matter!) that the requirement for the gas safety certificate is to do with the provision of a utility and thus the payment required by the tenancy agreement is permitted

Good find! I missed that eventhough I feel like I've read the whole thing numerous times by now.

If worst comes to worst I might offer a compromise and pay for the Certificate monthly (after an actual receipt is shown) as we are not planning on staying for much longer, hopefully 1-2 months, due to several issues that have not been addressed like multiple leaking windows with failed double glazing, horrible drafts etc. I have no interest in paying for a whole years Certificate if the same provision will be in the next Tenants contract and they get off without paying for it until next year.

Thank you for your help so far.

[R0b]

Although I agree with Des in theory that a landlord could argue that point about a utility, the question is does a gas safety check mean they are connecting or providing a utility? I think that's a bit of a stretch and would instead regard it as maintenance.

You can to pay it and confirm in email you will look to recover it as a prohibited charge under the tenant fees act by going to court. Obviously that could harm relations if there's a positive relationship with your landlord. You can as an alternatively tell him your not satisfied with his response and kindly ask him to explain why he seems to think the contract terms override the TFA which strictly prohibits payments like these.

However, since you are not staying on too much longer.. I'd refuse payment.

[Wylderose]

As part of the Landlord's obligations to the safety of their tenants, it is the Landlord's responsibility to get an annual gas safety check done. Although he has inserted that clause into your tenancy, you should not be paying for it.

This might be of help to you GOV.UK - https://www.gov.uk/renting-out-a-property - and in particular this link to the gas safe register is very explicit about landlord's responsibilities with regards gas safety checks - https://www.gassaferegister.co.uk/he...for-landlords/

[DanS.]

Hi everyone, I received a reply from my Landlord regarding this. I'm not too sure what this means. To me it sounds like they can pretty much write anything into the contract and as long as it is signed it is legally binding. English is a second language to me and for the first time in a long time I feel slightly out of my depth!

It reads as follows:

A private tenancy agreement consists of express and explicit clauses covering any topic relevant to one party temporarily lending their house, in good faith, to others.

Once consent, by signing, has been given by the parties, clauses contained therein are binding.

Our agreement with you was created in 2014, renewed annually until May 2021.

To avoid any later misunderstandings, in situations not already specifically covered by an existing clause only, a list would exist (in 2014) to try to clarify what is to happen in those instances. For example, extra items, not already catered for in an agreement, that can be legitimately charged by landlords to tenants.

A 2019 list would likewise relate to agreements created after 2018, but any list becomes irrelevant if superseded by express and explicit clauses (as above). This is why Clause 3.17 still applies.

I would appreciate it if someone could tell me if this is a fancy way of saying 'we can do what we want because it's in the contract'.

[des8]

The ban on tenant fees applies to new or renewed tenancy agreements signed on or after 1 June 2019.
So IMO if renewed after 01.06.2019 those fees are banned regardless of the contract created in 2014

[DanS.]

The ban on tenant fees applies to new or renewed tenancy agreements signed on or after 1 June 2019.
So IMO if renewed after 01.06.2019 those fees are banned regardless of the contract created in 2014

You, me, my in-laws, Shelter and Citizens Advice seem to think so too. Convincing the Landlord however is a whole different story. I'm still not sure what his latest response exactly meant other than "it's in the contract, therefore it's legally binding, regardless of Tenant Fees Act".

[des8]

Just tell him he's wrong