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Lawbite: Gas safety certificates and Section 21 Notices

  • United Kingdom
  • Litigation and dispute management
  • Real estate
  • Real estate litigation - LawBite

24-06-2020

Trecarrell House Ltd vs Patricia Rouncefield [2020] EWCA Civ 760

The Court of Appeal has ruled that a failure to issue a gas safety certificate before a tenant moves into a property does not render a landlord’s Section 21 notice invalid, what is important is that the certificate is given to the tenant before the notice is served on it.

In February 2017, the tenant entered into a 6 month assured shorthold tenancy. The landlord, Trecarrell House Ltd, did not provide her with a gas safety certificate, nor did they display one in the property prior to her going into occupation. In November 2017, the tenant was provided with a gas safety certificate dated January 2017 (i.e. before the tenant went into occupation).

In May 2018, the landlord served a notice pursuant to section 21 of the Housing Act 1988 (the “Act”) to terminate the tenancy. However, the tenant argued that by failing to provide the gas safety certificate prior to her tenancy commencing the landlord was in breach of the prescribed requirements as set out in section 21A of the Act. It followed that the landlord was, therefore, prohibited from serving a section 21 notice.

The tenant was successful at first instance and the decision was upheld in the High Court. However, the Court of Appeal overturned this decision and held that a breach of the obligation to provide a tenant with the gas safety certificate could be remedied.  As such, if a landlord provided  the tenant with the gas safety certificate prior to service of the section 21 notice, the landlord could rely on that notice.

There was a dispute as to whether the gas safety certificate was in fact received prior to service of the section 21 notice and the matter was referred back to the county court to determine this issue.

Key points

  • It is still necessary for landlords to have carried out the gas safety inspection prior to the tenant occupying the relevant premises and annually for existing tenants
  • The key point in this decision (which will be welcomed by landlords) is that a failure to then provide that gas safety certificate to the tenant prior to it going into occupation/ within 28 days of the annual inspections will not prevent the landlord from ever serving a section 21 notice.  Prior to this decision such a default could not be remedied retrospectively, meaning that the landlord could never serve a section 21 notice in those circumstances
  • Failure to carry out the annual gas safety inspection will also not be fatal to service of a section 21 notice as long as it is carried out and provided to the tenant before notice is served. This is good news for landlords who may have missed inspections as a result of the COVID-19 crisis.
  • However, the decision suggests that landlords will not be required to provide a gas safety certificate to their tenants until they choose to serve a section 21 notice. This means that in a lengthy tenancy, the tenant could go for a number of years without being provided with a certificate