The Court of Appeal decision in Trecarrell House Limited v Rouncefield, handed down in June 2020, has established that a landlord who has not provided their tenants with a gas safety certificate prior to the tenancy commencing is not prevented from using a section 21 notice to recover possession, as long as before they serve the section 21 notice they have provided the tenants with a copy of the gas safety certificate that was in force before the tenant went into occupation of the property. Landlords should also provide copies of any gas safety certificates obtained since the tenancy started, but failure to do so ought not to prevent service of a valid section 21 notice.
The Gas Safety (Installation and Use) Regulations 1998 (“the Gas Safety Regulations”) require every landlord:
- to carry out an annual gas safety inspection (regulation 36(3));
- to give a tenant a copy of a gas safety certificate within 28 days of any such inspection (regulation 36(6)(a)); and
- to give the current certificate to any tenant prior to occupation (regulation 36(6)(b)).
Section 21A of the Housing Act 1988 states that a section 21 notice ‘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’. Under section 21B the Secretary of State is able to specify which regulations are to be treated as prescribed requirements.
The relevant prescribed requirements are found in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the AST Regulations”) – these state that the provisions found in the Gas Safety Regulations must be complied with in order to serve a valid section 21 notice.
This all seemed pretty onerous for landlords, especially when the initial decision in Trecarrell House Ltd v Rouncefield held that failure to provide a gas safety certificate before the tenancy commenced was not capable of being remedied and the landlord’s claim for possession was thus dismissed. However, the recent Court of Appeal decision shows that failure to provide a gas certificate when tenants move into a property is not fatal, provided that the omission is remedied prior to the service of a section 21 notice.
In addition, it was also recognised by the Court of Appeal that the requirement to do an annual safety inspection (regulation 36(3)) is not a prescribed requirement for the purposes of section 21A of the HA 1988.
The Court of Appeal decision leaves a number of questions still unanswered. What is the position if a landlord has failed to do a gas safety check (and so does not have a gas safety certificate) for the period before the tenant went into occupation? Alternatively, what if the check was done but the landlord no longer has the record of it?
It is clear from these as yet unanswered questions that landlords should take particular care to comply with their gas safety obligations. Failure to comply with the Gas Safety Regulations could potentially not only lead to landlords being unable to regain possession of a property, but could also lead to a criminal conviction for a breach.
A copy of the judgment can be found here.
For more information please contact Bryony Darnell.