On 18 June 2020 the Court of Appeal handed down judgment in the eagerly awaited appeal in Trecarrel House Limited v Patricia Roundfield . By majority, it was held that failure to provide a gas safety certificate before a tenant occupies a property does not prevent a landlord serving a section 21, Housing Act 1988 notice so long as the relevant certificate has been given before the notice is served.
There are various restrictions on the serving of a section 21 notice. Section 21A, Housing Act 1988 provides that 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.” One of those requirements is that the landlord must provide to a tenant (or ensure that they have access to) a copy of the last gas safety record before taking up occupation (Regulation 36 of the Gas Safety (Installation and Use) Regulations 1998).
Background of the case
Ms Rouncefield held an assured shorthold tenancy agreement. The property had central heating and hot water, which was supplied by a gas boiler located in the building. At the time the tenancy was granted in February 2017, Ms Rouncefield was not provided with a copy of the relevant gas safety record nor had the landlord displayed a copy in a prominent position in the property.
The landlord provided Ms Rouncefield with a copy of the latest gas safety record on 9 November 2017. The landlord served a s.21 notice to Ms Rouncefield on 1 May 2018. The gas safety record was dated 31 January 2017 and so was out of date by the time the s.21 notice was served.
Possession proceedings were brought under the accelerated procedure against Ms Rouncefield. The claim was defended on the basis that the landlord had failed to comply with either regulation 36(6)(b) or 36(7) of the Gas Safety (Installation and Use) Regulations 1998 when it granted her the tenancy and before she began to occupy the flat.
Ms Rouncefield’s defence failed as it was held at County Court at Truro that regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 had no application because there was no gas appliance in the flat and/or because the time limit prescribed in the regulations for the provision of the gas certificate was not a bar to late compliance.
Ms Rouncefield appealed and was successful. HHJ Carr held that the landlord could not rely upon a section 21 notice where there had been late compliance relating to regulation 36(6)(b) and (7). This meant that a landlord could never recover possession by service of a s 21 notice where a gas safety record was not supplied to the tenant or displayed in the flat prior to taking up occupation.
Of course, the landlord appealed to the Court of Appeal.
Decision from the Court of Appeal
By majority, it was held that failure to provide a gas safety certificate before a tenant occupies a property does not prevent a landlord from serving a section 21 notice so as long as, prior to service of the s.21 notice, the landlord had provided the gas safety record that was in force prior to the tenant taking up occupation and a copy of any record relating to any subsequent inspection.
So there are some restrictions placed on landlords. If a landlord wishes to rely on a section 21 notice, then the “relevant” gas safety record has to be served on the tenant to gain possession of a property. If a landlord does not have a gas safety record for the 12 months covering the start date of the tenancy then it appears that the landlord cannot remedy the breach by obtaining a gas safety record after the tenancy has begun.
However, the position as to whether or not an out of time gas safety check is valid is still unclear. What if a landlord has not done a gas safety for the period before the tenant takes up occupation? What are the legal consequences of a landlord failing to do the annual gas safety inspection? Only time will tell but currently we are left with many uncertainties.
Author Manjinder Kaur Atwal is the housing director at Duncan Lewis Solicitors, based in the Harrow office. She has expertise in all areas of social housing law and regularly assists landlords and tenants on S21 matters, possession proceedings and evictions.
Contact Manjinder on 020 3114 1269, or at firstname.lastname@example.org
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