Landmark Court of Appeal decision welcomed by landlords

On 18 June 2020, the Court of Appeal handed down its long-awaited decision on the Trecarrell House Ltd v Rouncefield case, offering hope for landlords regarding the contentious issue of whether failing to provide a gas safety record to a tenant, before they take occupation of a property, prevents the landlord from later issuing a Section 21 notice. The Court concluded that the failure of Trecarrell House to provide Ms Rouncefield with the certificate before she began her tenancy did not preclude the issuing of a Section 21 notice in this case – as the certificate was provided to the tenant before the notice was served.

What are the facts?

In 2017, Ms Rouncefield took possession of a property owned by Trecarrell House Ltd through an assured shorthold tenancy agreement. The landlord did not provide her with a gas safety certificate prior to occupation, but did provide the certificate (dated January 2017) in November that year.

Later, in May 2018, Ms Rouncefield’s landlord served a Section 21 notice upon her which, under the Housing Act 1988, allows a landlord to evict a tenant with two months’ notice without stating a reason. The tenant argued that, as she had not been provided with the gas safety certificate prior to her occupancy, the landlord could not legally serve her with a Section 21 notice. A possession order was initially granted, after which the tenant sought permission to appeal, which was also granted. The final decision was handed down on 18 June in favour of Trecarrell House.

What does the law say?

There are several pieces of legislation involved in this case:

1. The Gas Safety (Installation and Use) Regulations 1998 imposes obligations on residential landlords to ensure the property is fit for occupancy. This includes the requirement to carry out an annual gas safety inspection and to provide the tenant with a copy of a gas safety certificate within 28 days. Key to this case, Reg.36(6)(b) of the Regulations also requires the landlord to provide the latest certificate to new tenants prior to their occupation of the property.

•  Section 21 of the Housing Act 1988 allows a landlord to repossess their property without stating a reason, provided that two months’ notice is given. However, the crux of this particular case lies in a third piece of legislation.

• The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 state that a Section 21 notice cannot be served if the landlord is in breach of a ‘prescribed requirement’. One such requirement involves Reg.36(6) of the Gas Safety Regulations, i.e. the requirement to undertake an annual gas safety check and provide the tenant with a certificate.

However, the 2015 Regulations also state that, while a landlord still has to provide a copy of the certificate to meet requirements for issuing a Section 21 notice, “the 28 day period for compliance with that requirement does not apply”. In other words, the Court of Appeal decided that, because the landlord did give the gas safety certificate to the tenant at some point before issuing the Section 21 notice, they were not in breach of any requirements under the 2015 Regulations and could legally serve the notice

Why is it important?

The impact of this judgment is wide-reaching, as it directly contradicts a similar County Court judgment that decided in favour of the tenant. In the case of Caridon Property Ltd v Shooltz, the judge applied a stricter interpretation of the wording of the 1998 Gas Safety Regulations. He ruled that the failure to issue a gas safety certificate prior to the tenancy commencing meant that Caridon would never be able to serve a Section 21 notice on the tenant, therefore transforming the tenancy into an assured tenancy. While the decision was not binding, it has widely been treated as a persuasive authority in similar cases.

However, the National Landlords Association protested: “we do not support the de facto introduction of assured tenancies because landlords cannot rectify an unwitting error made before a tenancy begins.”

This is why the recent Court of Appeal decision has been welcomed with such relief by landlords. As this article shows, the law surrounding this issue is incredibly complex, so landlords may be unaware that they have contravened the Regulations, only to find out when they end up in court after serving a Section 21 notice. Moreover, due to the recent coronavirus lockdown, many landlords will have been unable to fulfil the requirement to provide a gas safety certificate, and will therefore be relieved by this judgment, which suggests that they will still have recourse to a Section 21 notice at a later date if required.

Expert Dispute Resolution lawyers

Whether you are a landlord facing legal action or a tenant facing eviction, we can help. Property law can be incredibly complex, so you need experts on side to guide you through your case and explain what you need to know in plain English. Please get in touch with Prabhi Ghura on 0203 871 0017 or via email at prabhi.ghura@attwaters.co.uk.