Will the lack of a Gas Safety Certificate prevent a Landlord from relying upon a section 21 notice?
11th August 2022
11th August 2022
We are reviewing today an appeal from the County Court in the form of Byrne v Harwood-Delgado H00HF202, decided on 21 June 2022 (see the Judgment here). The question before the Court was whether a landlord’s failure to obtain (let alone serve upon the tenant) a Gas Safety Certificate prior to the occupation of the tenant could be remedied later by obtaining a Certificate and then serving that upon the tenant.
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.
This resulted from, what turned out to be a misunderstanding of :-
Regulation 36(3) of the Gas Safety (Installation and Use) Regulations 1998, which requires that a landlord must inspect gas appliances at least every 12 months;
Regulation 36(6) which requires that a Gas Safety Certificate must be given to any existing tenant within 28 days of the check and a copy of the last check must be given to any new tenant prior to their taking up occupation; and
section 21A Housing Act 1988 (as amended) which requires that a section 21 notice may not be given to end an assured shorthold tenancy at a time when the landlord is in breach of a prescribed requirement. Accordingly, if Regulation 36 GSR (as above) has not been complied with and thus the landlord is in breach a section 21 notice served cannot be relied upon.
The disturbing decision in Caridon Property, which had the effect of turning a Shorthold tenancy into an Assured Tenancy purely due to a procedural error in timing of the service of the Gas Safety Certificate, was followed by the now leading case of Trecarrell House Limited -v- Patricia Rouncefield  EWCA Civ 76 (“Trecarrell House”) which clarified the position (see here).
In Trecarrell House, the Court of Appeal found that the fact that a Gas Safety Certificate obtained in the January, prior to the tenant’s occupation in the February, but which was not served on the tenant until the November, was not sufficient to prevent the landlord from relying upon the section 21 notice swerved later in the tenancy. In short, the error in not providing the Gas safety Certificate prior to the tenant moving into the property could be remedied by later provision of the Gas safety Certificate already in place at that date.
This latter point is an important one and is a significant part of the decision in Byrne v Harwood-DelgadoI, the subject of this Legal Update.
The tenant (Mr H-D) moved into the property in August 2019. In the November of 2019, and thus following his occupation, the tenant was served with a Gas Safety Certificate. Importantly, the date of that Gas Safety Certificate was September 2019 and thus also after the tenant took up occupation. In the October 2020 the landlord served a further annual Gas Safety Certificate and then in November 2020 the tenant received a section 21 notice.
Save for the date on the September 2019 Gas Safety Certificate, the facts in this matter are not far removed from those in Trecarrell House. As in Trecarrell House, Mr H-D here contended that the landlord was prevented from relying upon the section 21 notice for failure to comply with the Gas Safety Regulations (see above) at the commencement of the tenancy.
The County Court dismissed the defence and made a possession order on the basis that the late service of the Gas Safety Certificate would not preclude reliance upon the section 21 notice. This was in line with Trecarrell House.
The tenant appealed.
On appeal the Court found that the circumstances of this case were indeed different from the facts in Trecarrell House because the landlord in Trecarrell House had obtained a Gas Safety Certificate prior to the date that the tenant took up occupation. In that case the landlord had simply neglected to provide the tenant with a copy at the right time. That timing failure could be remedied by providing the certificate later.
In the present case, however, there had been a failure by the landlord to obtain a valid Gas Safety Certificate by the date of occupation by the tenant and thus the landlord could not know at that date that the property, and his tenant, were safe - the whole point of the Regulations and why the sanction imposed in section 21A had been implemented.
Accordingly, where a landlord fails to obtain Gas Safety Certificate prior to the occupation of the tenant then the prohibition at section 21A Housing Act 1988 (as amended) will forever prevent the landlord from serving a no fault section 21 notice to terminate the tenancy. The consequence of this is to effectively turn a Shorthold tenancy into an Assured tenancy and thereby prevent possession other than on fault based grounds.
Both Trecarrell House and this decision have to be correct on any proper reading of the legislation. The issues arising in either case are easily capable of remedy/avoidance by:-
ensuring that prior to the marketing of any property for let the gas appliances have the relevant certification;
a copy of that certificate is left at the property;
ideally, a further copy is presented to and signed by the tenant when they sign the tenancy agreement prior to occupation; and
diary notes are made to ensure that 11 months later a further Gas Safety Inspection is booked and completed with the relevant copy provided to the tenant.
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