Q. THE gas safety certificate is due for renewal today and despite the tenants having been given notice, my gas engineer has just received a call from the tenant saying that he cannot do the certificate today because the house is not well presented and that the tenants will be back in contact when it is convenient. Surely, my tenant cannot prevent access? Please advise what action I can take.

A. LANDLORDS are responsible for repairs and the safety of their tenants. For which there are penalties for non-compliance. However to enter a property without consent can mean that you may get sued for trespass by the tenant, along with breaching the tenant’s rights of quiet enjoyment.

So what can you do? Under S11 of the Landlords and Tenant Act 1985, the landlord has a statutory duty to comply with the following:

(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

(b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation,(including basins, sinks, baths and sanitary

(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

It is a legal duty to have all gas appliance checked at least once a year.

A landlord has to show that they took all reasonable steps to comply with the law.

The Health and Safety Executive (HSE) recommends the following best practice in these circumstances and strongly advises that a record be kept of all correspondence with the tenants:

• Leave the tenant a notice stating that an attempt was made to complete the gas safety check and provide your contact details,

• Write to the tenant explaining that a safety check is a legal requirement and that it is for the tenants own safety. Give the tenant the opportunity to arrange their own appointment,

• HSE inspectors will look for at least three attempts to complete the gas safety check, including the above suggestions; however the approach will need to be appropriate to each circumstance. It would ultimately be for a court to decide if the action taken was reasonable depending upon the individual circumstances,

• It is a good idea to include arrangements for access in the tenancy agreement.

What you need to be able to demonstrate is due diligence. This may include deciding not to attempt access and instead to seek possession for breaches in the tenancy agreement, under Ground 12 of The Housing Act 1988, where a tenant has broken one or more of the terms of the tenancy agreement, which would be the case here.

Applying to other similar principles, the tenancy agreement will state that access can be gained if it is deemed an emergency. For example if we had a call from the neighbour to say that water was coming out from under the front door then clearly we need to turn the water off as quickly as possible to prevent further damage to the fabric of the property which under this example could also include water damage to the tenant’s possessions. However what if the same neighbour called to say that she thought she heard a noise inside the house. Does this warrant an emergency?

An expired gas certificate is not an emergency, though a report of the smell of gas from the property would be. Though admittedly, there may be some grey areas in between.

Please continue to send in your letting related questions to steven@sawyersestateagents.co.uk