Court of Appeal confirms late compliance with Gas Safety Regulations does NOT prevent Section 21 Notice from being served
3rd July 2020
3rd July 2020
In 2018, Caridon Property Ltd -v- Monty Shooltz sent ripples through the residential letting sector, deciding that a landlord’s failure to provide a gas safety certificate to its tenant prior to the tenant taking up occupation of the premises would prevent a Section 21 notice from ever being served.
In February 2018 (see here), we reported on the case and expressed our view that the outcome could not possibly have been what Parliament intended when enacting the Deregulation Act 2015, by effectively making an assured shorthold tenancy (AST) a fully assured tenancy with far greater security of tenure, in the event of such default. Thankfully, the position has now been reversed and common sense restored, by a decision of the Court of Appeal published just yesterday.
Trecarrell House Limited -v- Patricia Rouncefield  EWCA Civ 76
The facts of the case were not unusual. Ms Rouncefield was granted an AST by Trecarrell House Limited on 20 February 2017. The flat is provided with central hearing and hot water by means of a gas boiler housed elsewhere in the building, e.g. there are no gas pipes or gas appliances (such as a boiler) within the flat itself.
Ms Rouncefield was not provided with the gas safety certificate before she moved in. Nor was a copy displayed in a prominent position in the premises. Ms Rouncefield was, however, provided with the gas safety certificate dated 31 January 2017 in November 2017, some 9 months after she moved in. A later gas safety check was carried out and a certificate said to have been given to Ms Rouncefield in April 2018. The certificate initially given to Ms Rouncefield was dated 03 April 2018 (so 3 months late of the 12 month check), however Trecarrell later gave evidence that the gas safety check was actually done on 02 February 2018 (so only a few days late) and the certificate simply contained an error. An amended copy of the certificate was said to have been given to Ms Rouncefield.
Later a Section 21 notice was served and a claim for possession issued used the accelerated procedure. Ms Rouncefield defended the claim on the grounds that she had not been given a copy of the gas safety certificate before she took up occupation of the property, therefore Trecarrell was prohibited from serving a Section 21 notice under Section 21A of the Housing Act 1988, that being the requirement introduced by the Deregulation Act 2015 on landlords to comply with prescribed legal requirements before serving a Section 21 notice. That argument was not accepted by the County Court, but was successful on appeal. Trecarrell then appealed to the Court of Appeal.
The prescribed requirements - Gas Safety Certificates
The requirement on landlords to have given their tenants a copy of the gas safety certificate before serving a Section 21 notice comes from Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the 2015 Regulations”).
Regulation 2(1)(b) requires the landlord to have complied with Regulation 36(6), or as the case may be, 36(7) of the Gas Safety (Installation and Use) Regulations 1998 (“the Gas Safety Regulations”). Regulation 2(2) provides that, for the purposes of Section 21A (restriction on serving Section 21 notices), the requirement in Regulation 2(1)(b) is limited to the requirement on the landlord to give a copy of the relevant certificate to the tenant and the 28 day period for compliance does not apply.
The 28 days for compliance comes from the Gas Safety Regulations. Under Regulation 36(6)(a), a landlord is required to give the gas safety certificate to its tenant within 28 days of the annual gas safety check. Regulation 36(b) requires a landlord to give to any new tenant the current gas safety certificate, before they take up occupation of the premises. Under Regulation 36(7), where there is no relevant gas appliance in any room to be occupied by the tenant, a landlord is to ensure that, unless a copy of the gas safety certificate is given to the tenant, a copy of the certificate is instead displayed in a prominent position in the premises together with a statement that the tenant may have their own copy of the certificate upon request.
The Court of Appeal’s decision
Trecarrell sought to argue that the effect of Regulation 2(2) of the 2015 Regulations was such that it only imposed an obligation on landlords to provide the annual gas safety certificate to their tenants (e.g. compliance with Regulation 36(6)(a) of the Gas Safety Regulations), in order to be able to serve a Section 21 notice, as there was no reference to the corresponding 28 day period in Regulation 36(b) of the Gas Safety Regulations (e.g. the requirement to provide the certificate before the tenant takes up occupation).
That argument was not accepted by the Court of Appeal, who were satisfied that the landlord must comply with both Regulation 36(6)(a) and (b) (or, as the case may be, Regulation 36(7)) of the Gas Safety Regulations in order to serve a Section 21 notice. However, the Court held that late compliance with either of these requirements, was NOT a bar to serving a Section 21 notice. There seemed to the Court no obvious sense to say that the 28 day period for a landlord to provide the annual gas safety certificate could be ignored, but the requirement to provide the gas safety certificate before the tenant takes up occupation was a strict deadline that had to be complied with, for a Section 21 notice to be served.
The Court took particular note of the fact that Regulation 36(6)(b) requires the gas safety certificate to be provided before the tenant takes up occupation, as opposed to before they are granted the tenancy. It was not therefore swayed by any argument that the policy behind the restriction in Regulation 2 of the 2015 Regulations was to ensure tenants were satisfied that the property they were moving into was safe, as the tenant may already be committed to the tenancy before the requirement to provide the certificate (at the point of moving in) kicks in. The Court also noted that the bar on serving a Section 21 notice was not the only sanction for non-compliance with the Gas Safety Regulations, which of itself would amount to a criminal offence. It was relevant that other restrictions on serving Section 21 notices, for example where the tenancy deposit rules have not been complied with, were capable of remedy to enable a Section 21 notice to later be served.
With regards to the late 2018 gas safety check and the late provision of that certificate, the Court of Appeal provided much needed clarity on the issue and held that a failure to carry out a gas safety check within 12 months was not a bar to serving a Section 21 notice, as long as they provided the certificate once the check had been carried out. The issue was, however, remitted to the County Court for evidence to be given as to whether or not Ms Rouncefield had in fact been given the correct 2018 certificate, before the Section 21 notice was served.
Unless the issue is further appealed, this is the final word on the matter and will provide much welcomed clarity (and relief) for residential landlords with ASTs.
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