Trecarrell House Limited v Patricia Rouncefield [2020] EWCA CIV 760

Easing the pressure on landlords – gas safety and termination notices

Summary

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.

The law

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:

• a copy of the gas safety certificate is given to each existing tenant of premises to which the record relates
• 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 that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.

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).

Facts of the case

• 31 January 2017 - the landlord obtained a gas safety certificate.
• 20 February 2017 - the tenant was granted an AST of the premises and moved into the flat but was not given a copy of the certificate (nor was a copy displayed in a prominent position on the premises) prior to this.
• November 2017 – a copy of the January certificate was given to the tenant.
• 3 April 2018 - a further certificate was provided to the tenant on 3 April 2018. It later came to light that the correct date of this certificate was 2 February 2018.
• 1 May 2018 – landlord served a section 21 notice.

The issue

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.

Decision

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:

• All of the other prescribed requirements are capable of being remedied (e.g. failure to protect a deposit can be remedied by return of a deposit and so the position should be the same with a gas safety certificate.
• There is an additional sanction of criminal liability for a failure to carry out annual inspections, so the requirement to provide a certificate and the prohibition of serving a valid section 21 notice until this has been done is not the sole incentive for compliance.

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.

Our comment

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?