Section 21 Notice and ‘late’ gas safety certificates25/06/20
On 18 June 2020, the Court of Appeal handed down its eagerly awaited judgment in the case of Trecarrell House Ltd v. Rouncefield  EWCA Civ 760 in which the court considered the ability of a landlord to recover possession pursuant to a notice under section 21 of the Housing Act 1988 (“1988 Act”) when the landlord had failed to provide the tenant with a gas safety certificate prior to them taking up occupation of the property under the tenancy. We explore the decision in this case and what it means for registered providers (RPs) below.
What is the relevant law?
The Gas Safety (Installation and Use) Regulations 1998 (“1998 Gas Regs”) impose on landlords various requirements, including requirements to:
- carry out annual gas safety inspection: reg.36(3), 1998 Gas Regs;
- give tenants a copy of a gas safety certificate within 28 days of any such inspection: reg.36(6)(a), 1998 Gas Regs; and
- give new tenants the current certificate prior to them taking up occupation: reg.36(6)(b), 1998 Gas Regs.
A landlord is entitled to seek to possession of an assured shorthold tenancy - without proving one of the grounds for possession for an assured tenancy is made out - by relying upon a simple notice which complies with section 21 of the 1988 Act.
However, there are limitations on the ability to rely upon such a notice when a landlord is in breach of any one of a number of “prescribed requirement[s]”: s.21A, 1988 Act.
By virtue of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“2015 Notice Regs”), these prescribed requirements include compliance with reg.36(6) of the 1998 Gas Regs: reg.2(1)(b), 2015 Notice Regs.
However, the requirement prescribed by reg.2(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”: reg.2(2), 2015 Notice Regs.
What were the relevant background facts?
The tenant was an assured shorthold tenant pursuant to an agreement made in February 2017. At the time when she entered into occupation, she was not provided with a gas safety certificate.
The relevant gas safety certificate had been produced in January 2017, before the tenant took up occupation, and was later provided to the tenant in November 2017.
In May 2018, the landlord decided to serve the tenant with a notice under section 21 of the Housing Act 1988 and subsequently issued possession proceedings. The tenant sought to defend the proceedings on the basis that the landlord’s section 21 notice was invalid because the landlord had not provided the gas safety certificate to them prior to the commencement of the tenancy. The Deputy District Judge was not persuaded and made an order for possession.
The tenant appealed to the Circuit Judge who allowed the appeal on the basis that the failure to provide the gas safety certificate prior to the tenant taking up occupation could not be remedied by its later provision.
The Court of Appeal granted the landlord permission to appeal. The tenant sought to take a new factual point through a Respondent’s Notice asserting that a further gas safety check had been carried out in February 2018 but that no certificate had been provided. Whilst the landlord asserted it had been provided to the tenant prior to service of the section 21 notice, this issue had not been the subject of any factual determination by a lower court.
What did the court decide?
By majority decision, the Court of Appeal held that a landlord who has not provided the gas safety certificate prior to the tenant entering into occupation of the property can still rely upon a later section 21 notice so long as that the relevant gas safety certificate is given to the tenant prior to service of the said notice.
The Court of Appeal has, however, remitted the case back to the county court for factual determination of the new issue raised by the tenant in its Respondent’s Notice as to the February 2018 gas safety inspection.
What does this mean for landlords?
Landlords will welcome the decision that they are able to remedy a simple failure to provide a gas safety certificate - which is already in existence - to a tenant when they take up occupation of the property. In addition, the judgement appears to support the view that in subsequent years, a late annual inspection will not prevent a section 21 notice being relied upon provided the certificate it is given to the tenant before the notice is served.
However, this case does leave outstanding the following important questions:
- What if the landlord has failed to carry out the gas safety inspection prior to the commencement of the tenancy (so that there is no gas safety certificate dated before the start of the tenancy to provide at a later date)?
- What happens if the landlord fails to undertake subsequent yearly checks?
It is entirely possible that the tenant may seek permission to appeal to the Supreme Court. With the issue dividing the judges in the Court of Appeal, permission may be more readily forthcoming – so watch this space!
How can we help?
Our housing management team of specialist lawyers are working to ensure that we are right beside our clients every step of the way. Our experts operate nationally on all areas of housing management and we are on hand to advise on issues such as gas and fire safety, anti-social behaviour, access and disrepair claims.
If you have any queries around what is discussed in this insight, or the steps that you can take in any given case, please do not hesitate to speak to Simon Strelitz or any of your contacts at Capsticks to find out more about how we can help.