Last week the Court of Appeal handed down a much anticipated judgment in the case of Trecarrell House Ltd v Rouncefield  EWCA Civ which will give residential landlords some welcome respite from the already heavily regulated lettings sector. It concluded that a landlord’s failure to provide a tenant with a valid gas safety certificate prior to their occupation of a property does not prevent a landlord from serving a section 21 notice, provided the certificate has been sent to the tenant prior to the landlord serving the section 21 notice.
In February 2017, Trecarrell House Limited let a flat to Ms Rouncefield on an assured shorthold tenancy. It was common ground that a gas safety certificate had not been provided to the tenant prior to the commencement of the tenancy. The landlord served the tenant with a copy of the gas safety certificate in November 2017. That certificate was obtained in January 2017.
The landlord decided to determine the tenant’s agreement and served a section 21 Notice on 1 May 2018. County court possession proceedings were issued shortly thereafter. The tenant argued that the landlord could not serve a section 21 notice because no gas safety certificate had been provided prior to her taking occupation. At first instance, Deputy District Judge dismissed the defence and granted a possession order.
On appeal, the Circuit Judge held that by failing to provide a gas safety certificate prior to commencement of the tenancy, the landlord could not rectify this by serving the certificate late and granted the tenant’s appeal. This follows the logic of HHJ Luba QC in Caridon Property Ltd v Monty Shooltz.
The landlord appealed to the Court of Appeal; when analysing how the relevant statute and regulations were constructed, the Court of Appeal agreed with the landlord and held that so long as a gas safety certificate is given to a tenant before a section 21 notice is served, that notice will be valid. It did not matter that the landlord only gave the gas safety certificate to the tenant in November 2017.
A further point of interest was that at the same time as the landlord’s appeal to the Court of Appeal, the tenant also served a cross, Respondent’s Notice taking a new factual point. It was alleged that the landlord had undertaken a further gas safety check in February 2018 and had not provided the fresh gas safety certificate to the tenant. The tenant argued that failure to do so was a breach of a prescribed requirement and would invalidate the section 21 notice served in May 2018. The landlord stated that the certificate had been given before the section 21 notice was served. There was, however, a factual dispute as to whether the 2018 certificate had been provided and the Court of Appeal have remitted the point back to the county court for their consideration.
The Gas Safety Regulations 1998 state at 36(6):
“(6) Notwithstanding paragraph (5) above, every landlord shall ensure that—
(a) a copy of the record made pursuant to the requirements of paragraph (3)(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and
(b) a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.”
21A of the Housing Act 1988 (as amended) states:
“(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.”
The prescribed requirements are, in part, found in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.
“2.—(1) Subject to paragraph (2), the requirements prescribed(1) for the purposes of section 21A of the Act are the requirements contained in—
(a) (….), and
(b) paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998(3) (requirement to provide tenant with a gas safety certificate).
(2) For the purposes of section 21A of the Act, the requirement prescribed by paragraph (1)(b) is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply.”
Although it is to be noted that the tenant has appealed the decision, this is good news for landlords. In our experience, this issue has prevented a number of landlords from relying on section 21 notices, even where they can demonstrate that the gas safety check had been undertaken prior to occupation by the tenant. This caused understandable frustration in circumstances where plainly the property was safe for occupation (which was clearly the rationale for implementing the Regulations), but where the only breach was failure to disclose the evidence in time.
As such it would seem that common sense has prevailed; provided a landlord can show that a gas safety certificate has been served prior to serving a section 21 notice, then the tenant will not be able to rely on this late service as a breach of the regulations.
The landlord in this case may still face difficulties in securing possession of the property if they failed to serve the fresh gas safety certificate (obtained in February 2018) prior to serving the section 21 notice, since it is possible that this will invalidate the section 21 notice in any event.
Both landlords and tenants will be following the continued progress of this case with interest.