8 July 2020
RED Alert - Summer 2020 – 3 of 4 Insights
In welcome news to landlords, the Court of Appeal has held that a failure to provide a tenant with a gas safety certificate at the outset of a tenancy is not fatal for a landlord seeking to obtain possession via the service of a termination notice (known as a section 21 notice). It was held that so long as the certificate is provided to the tenant prior to service of the termination notice, the notice will be valid.
Section 21A of the Housing Act 1988 provides 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”.
The prescribed requirement relating to gas safety certificates states the following:
Where there is no relevant gas appliance in any room occupied by the tenant (in which case the landlord can, rather than giving the certificate to the tenant, ensure that a copy is displayed in a prominent position in the premises).
The main issue for the Court of Appeal to grapple with was whether a landlord's failure to provide the tenant with a certificate before they commenced occupation resulted in a situation where the landlord could never serve a valid section 21 notice. Indeed this was the position reached by HHJ Luba QC in Caridion Property Limited v Shooltz.
This argument arises because the prescribed requirement expressly disapplies the 28-day period for compliance with the requirement for a landlord to provide a copy of any new certificate to an existing tenant (so it will suffice for the certificate to be given late) but no equivalent saving provision is made in respect of the requirement to provide a certificate to a new tenant before they commence occupation.
By a majority of 2:1, the Court of Appeal held that a landlord can provide the tenant with a gas safety certificate after the tenancy has commenced and prior to the service of a section 21 notice and it will be valid. The reasons for reaching this decision included:
Moylan LJ dissented by stating that the gas safety certificate requirements were now a procedural rather than a substantive hurdle and that this limited their effect as a sanction. However, tenants have long been seeking to benefit from procedural hurdles and the threat of criminal liability for a failure to carry out annual inspections is a far more pressing substantive hurdle to incentivise landlords to comply with gas safety regulations.
This decision is a victory for common sense and has resolved the unsatisfactory situation whereby landlords who had not provided the tenant with a certificate at the outset of a tenancy were effectively indefinitely unable to obtain possession of their properties, despite subsequently providing such certificates.
The decision strikes a fair balance between the right of a landlord to obtain possession of their property and the right of a tenant to live in a safe environment because of the additional risk of criminal liability in the event that the landlord does not comply with gas safety regulations.
Some questions remain unanswered. Will there be a further appeal to the Supreme Court? Why was the legislation not drafted more clearly in the first place?
by Saleem Fazal
by Emma Archer
by multiple authors