Gas safety certificate mistakes can void Section 21 notices and cost landlords dear (1 November 2022)

The recent case of Dean Byrne v Thomas John Harwood-Delgado [2022] has served to highlight some important issues in respect of landlord gas safety certificates for tenants who have been served a Section 21 (S21) notice and face eviction.

According to section 21A of the Housing Act 1988, which came into force as part of the Deregulation Act 2015, landlords wanting to evict tenants under a S21 notice must comply with additional formalities. These included a requirement to show that they had provided the tenant with a gas safety certificate prior to the start of the tenancy, where relevant.

In Trecarrell House Limited v Patricia Rouncefield [2020], the Court of Appeal held that as long as the certificate was dated prior the tenancy start date it was not fatal to a possession action. It was held that, provided the certificate was served on the tenant before the S21 notice being served, the landlord was able to serve a valid S21 notice.

In that case, the tenant began a new tenancy in February 2017. The landlord did not give the tenant a gas safety certificate before she moved in but provided her with one dated January of that year the following November. The landlord served an S21 notice and issued possession proceedings. The tenant defended the claim on the basis that the gas certificate had not been provided before she moved into the property, meaning the landlord could not serve a valid section 21 notice.

This case made it easier for landlords who had not complied with the requirements initially to remedy the breach and then be able to serve a valid section 21 notice and the tenant would not be able to raise a defence to such proceedings in relation to the gas safety certificate.

A recent County Court appeal decision by HHJ Bloom, in the case of Dean Byrne v Thomas John Harwood-Delgado [2022], found that an S21 notice under the Housing Act 1988 was not available as a means of ending a tenancy if a landlord had not obtained a relevant gas safety certificate before to the commencement of tenancy, and that the situation could not be remedied later on.

In Byrne v Harwood-Delgado, the landlord had not obtained a gas safety certificate at the start of the tenancy, but a certificate was provided to the tenant six months into it. HHJ Bloom said that Byrne v Harwood-Delgado was different from Trecarrell House because there had been a fundamental failure on the part of the landlord. In the former, a gas safety certificate had not been obtained prior to the commencement of the tenancy, as opposed to the latter case, where the landlord had made a minor error and failed to serve a document.

HHJ Bloom also held the landlord’s failure to obtain a gas safety certificate before the start of the tenancy could not be remedied by the service of a gas safety certificate after the tenancy had started.

While the judgment is not binding, it could provide greater protection for tenants and increase their ability to defend S21 possession proceedings successfully. However, tenants could soon have no need of this added this protection if plans to abolish no fault S21 evictions are enacted, but in the meantime, tenants and their legal representatives have some additional defences against S21 possession proceedings.

About the author: Duncan Lewis Solicitors’ housing director Bernadette Chikwe is a recommended lawyer in the prestigious Legal 500 guide. She has copious experience in both dealing with privately rented, local authority and social landlords rent and other grounds possession proceedings. She also has experience in dealing with mortgage possession proceedings and charging order proceedings, and regularly assists clients in making applications to suspend warrants of eviction.

For advice in any housing matter contact Bernadette via email at bernadettc@duncanlewis.com or via telephone on 020 7275 2885.