Gas safety certificates and the service of S21 notices

Does the failure to provide a gas safety certificate prior to the commencement of a tenancy prevent the service of a section 21 notice?

Ever since the case of Caridon Property Ltd v Monty Shooltz [2018] EW Misc B9 (CC) in 2018 those in the social housing sector have been awaiting clarification and binding authority from the courts as to whether the failure to provide a gas safety certificate to a tenant prior to the start of a tenancy truly precluded a notice being served pursuant to section 21 Housing Act 1988 (“section 21 notice”).

The Court of Appeal judgment handed down on 18 June 2020 in the case of Trecarrell House Limited v Patricia Rouncefield [2020] EWCA Civ 760 finally provides some necessary clarification.

The law

S.21A(1) Housing Act 1988 (“the Housing Act”), introduced by the Deregulation Act 2015, states 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”.

Regulation 2(1)(b) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the 2015 Regulations”) provides that compliance with Paragraph 6 or paragraph 7 of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (“the Gas Regulations”) is a prescribed requirement save that, in accordance with Regulation 2(2) of the 2015 Regulations, such requirement 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”.

Regulation 36(6)(a) of the Gas Regulations provides that “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”.

Regulation 36(6)(b) of the Gas Regulations provides that “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 the tenant occupies those premises…”.

Regulation 36(7) of the Gas Regulations states that “where there is no relevant gas appliance in any room occupied or to be occupied by the tenant in relevant premises, the landlord may instead of ensuring that a copy of the record referred to in paragraph (6) above is given to the tenant, ensure that there is displayed in a prominent position in the premises (from such time as a copy would have been required to have been given to the tenant under that paragraph), a copy of the record with a statement endorsed on it that the tenant is entitled to have his own copy of the record on request…”.

The case

The case concerned Ms Rouncefield who became an assured shorthold tenant of a flat within Trecarrell House on 20 February 2017. Ms Rouncefield was not provided with a copy of the relevant gas safety certificate prior to taking occupation of the flat and, in fact, was not provided with a copy of the relevant gas safety certificate until later that year, on 9 November 2017.

A section 21 notice was subsequently served on Ms Rouncefield by her landlord, Trecarrell House Limited, on 1 May 2018 and followed by possession proceedings.

Ms Rouncefield defended the possession proceedings on the basis of her landlord’s failure to comply with Regulations 36(6) and 36(7) of the Gas Regulations. The county court initially found in favour of the landlord and granted a possession order. However, on appeal, it was held that late compliance with Regulation 36(6)(b) of the Gas Regulations prevented a landlord from subsequently serving a section 21 notice.

The landlord appealed to the Court of Appeal.

The judgment

After considering the issue, the court found that the correct interpretation of S.21A of the Housing Act and the 2015 Regulations was that Regulation 2(2) of the 2015 Regulations effectively provided that the timeframe for compliance with Regulation 36(6) of the Gas Regulations did not apply.

In giving judgment LJ Patten stated “I, therefore, prefer the view that as a result of regulation 2(2) the time when the landlord “is in breach” of paragraph (6)(b) ends for the purposes of S.21A once the GSR is provided”.

The Court of Appeal’s judgment, therefore, provides that so long as at the time that the section 21 notice is served the landlord is not in breach of Regulation 36(6)(b), by providing a copy of a relevant gas safety certificate prior to the service of the section 21 Notice, the section 21 notice could be validly served.

Outcome

The decision is a positive one for landlords as a failure to provide a gas safety certificate prior to the tenant taking occupation no longer permanently precludes a landlord from service of a section 21 notice.

Whilst the Court of Appeal’s judgment does provide some clarification, it also raises further questions including what would happen if a landlord has failed to carry out a gas safety checks before a tenant occupies the property or has failed to carry out a relevant gas safety check prior to the service of a section 21 notice given carrying out the annual gas safety check itself is not a prescribed requirement.

If the content of this update raises any issues for you, or you would like to discuss further, please liaise with Sian Evans, Partner on 0151 242 6821 or sian.evans@weightmans.com or Daniel Conroy, Solicitor on 0151 242 7966 or daniel.conroy@weightmans.com.