The Court of Appeal handed down a Judgement last week in the case of Trecarrell House Ltd v Rouncefield  EWCA Civ which has a profound effect on Landlords hoping to serve a Section 21 Notice and regain possession from their Tenant.
What does the law say?
A Section 21 Notice, under the Housing Act 1988, is served when a Landlord wants to regain possession of a property from their Tenant. Importantly this is a ‘no fault’ notice where it does not matter whether the Tenant has breached any of the terms of their Assured Shorthold Tenancy agreement or not. It can simply be served because the Landlord wants the Tenant out – whatever the reason.
However, the Housing Act 1988 stipulates that the any notice for possession against an assured shorthold possession Tenant may not be served if the Landlord is currently in breach of a ‘prescribed requirement’ (S.21A). The prescribed requirements impose obligation on the Landlord with a view to ensuring that the property that the Tenant is occupying is safe and suitable for habitation.
These prescribed requirements include Regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 – titled ‘Duties of Landlords’. These regulations require that the Landlord:
- Provides a copy of the current Gas Safety Certificate to a Tenant prior to occupation of the property (reg.36(6)(b));
- Provides an annual gas safety inspection (reg. 36(3)) and provides a copy of the Gas Safety Certificate to the Tenant within 28 days of that inspection (reg.36(6)(A).
The requirement for the Landlord to have complied with the Gas Safety (Installation and Use) Regulations 1998 is tempered by reg.2(2), Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 which states that, for the purposes of the Section 21A of the Housing Act 1998 the 28 day compliance period does not have to be complied with.
What happened in the case of Trecarrell House Ltd v Rouncefield?
In February 2017 Trecarrell House Limited, the Landlord, granted an Assured Shorthold Tenancy to Ms. Rouncefield. Trecarrell House Limited failed to give Ms. Rouncefield a copy of the Gas Safety Certificate before she entered into occupation, but they did provide a copy of a certificate dated January 2017 – in November that year. This is clearly out of the 28-day time frame for production of the certificate under Regulation 36.
The following year, in May, Trecarrell House Limited served Ms. Rouncefield with a Section 21 Notice, requiring her to grant them possession of the property and, when she failed to do so, issued possession proceedings against her. She defendant the claim for possession on the grounds that the Landlord had failed to provide the Gas Safety Certificate before she took occupation of the property. In the first instance this Defence was unsuccessful and the Deputy District Judge granted the possession order.
On appeal the court held that the failure of the Landlord to provide a Gas Safety Certificate was incapable of being remedied and therefore granted Ms. Rouncefield’s appeal against the possession order.
In addition to this the Ms. Rouncefield then claimed that another gas safety inspection had been undertaken while she lived at the property in February 2018 – but that she had not received a copy certificate for that inspection either. This was said to amount to a further breach of a prescribed requirement under Regulation 36 and Ms. Rouncefield used it as an additional reason why the S. 21 notice served by her Landlord was invalid.
However, Trecarrell House Limited appealed this, second, decision. The Court of Appeal held that the time period of 28 days for producing copies of the Gas Safety Certificates under Regulation 36 was disapplied by S.21A of the Housing Act 1998 and Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.
This means that a Landlord is able to use a S.21 Notice to evict a Tenant provided that they have provided a copy of the relevant certificate which was in force prior to the Tenant’s occupation and the certificates relating to subsequent inspections at any point before they serve the S.21 notice.
Under this ruling it did not matter about the substantive delay Trecarrell House Limited had in providing Ms. Rouncefield with the copy of the original certificate – as she had received that certificate before the S.21 Notice was served.
Questions this raises?
The final decision in this matter does lead to two important questions – only one of which can be answered.
Firstly – What if a Landlord fails to organise the annual gas safety inspection and therefore cannot provide a certificate? The Judgment recognizes that the Landlord’s duty to do an annual inspection is not a prescribed requirement under the Housing Act 1988 and therefore this would not pose a bar to issuing a S.21 Notice.
More difficult is the question what does a Landlord do when they did not undertake an inspection prior to the Tenant’s occupation? This seems like it cannot be remedied at the required circumstances – namely that the Tenant doesn’t occupy the property yet – no longer exist.
What are the implications of this decision?
This will take weight of a lot of Landlord’s minds – especially in the midst of the Covid-19 pandemic – it is worth knowing that there is now an authority which can be relied on to show that failure to provide a Gas Safety Certificate prior to the Tenant’s occupation is not fatal to serving a Section 21 notice.
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